■giona,! 


/ 


®i|^  Imtt^rattg  nf  iMinn^BCta 


STUDIES  IN  THE  SOCIAL  SCIENCES 


NUMBER  8 


THE  PETITION  OF  RIGHT  ^ 


BY 


FRANCES  HELEN  RELF,  Ph.D. 


MINNEAPOLIS 

Bulletin  of  the  University  of  Minnesota 

December  1917 


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1.  Thompson  and  Warber,  Social  and  Economic  Survey  of  a  Rural  Township  in 
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2.  Matthias  Nordberg  Orfield,  Federal  Land  Grants  to  the  States,  with 
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7.  C.  D.  Allin,  a  History  of  the  Tariff  Relations  of  the  Australian  Colonies. 
In  press. 

8.  Frances  H.  Relf,  The  Petition  of  Right.     1917.     $0.75 

9.  Gilbert  L.  Wilson,  Agriculture  of  the  Hidatsa  Indians:  An  Indian  Inter- 
pretation.    1917.     $0.75. 

10.  Notestein  and  Relf,  Editors,  Commons  Debates  for  1629.     In  press. 

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and  Water.     1912.     $0.50. 

2.  Frankforter  and  Kritchevsky,  a  New  Phase  of  Catalysis.     1914.     $0.50. 

oiux^ii^o  i.N   ^ENGINEERING 

1.  Geokoe  Alfred  Maney,  Secondary  Stresses  and  Other  Problems  in  Rigid 
Frames:  A  New  Method  of  Solution.     1915,     $0.25. 

2.  Charles  Franklin  Shoop,  An  Investigation  of  the  Concrete  Road-Making 
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crete.    1915.     $0.25. 

(Continued  inside  back  cover) 


SI}^  ImwrHttg  nf  iimtt^sota 


STUDIES  IN  THE  SOCIAL  SCIENCES 


NUMBER  8 


THE  PETITION  OF  RIGHT 


BY 


FRANCES  HELEN  RELF,  Ph.D. 


MINNEAPOLIS 

Bulletin  of  the  University  of  Minnesota 

December  1917 


Copyright  1917 

BY  THE 

University  of  Minnesota 


)h 


LIBRARY 

UNIVERSITY  OF  CALIFORNIA 

SANTA  BARBARA 


7 


K"! 


PREFACE 

In  the  history  of  parHamentary  procedure,  the  Petition  of  Right  is  unique ; 
it^has  no  precedent,  it  has  never  served  as  one.  It  was  not,  as  has 
been  commonly  supposed,  a  law,  or  even  the  equivalent  of  a  law.  Though 
in  the  ordinary  form  of  a  petition,  it  differs  from  any  other  petition  that 
was  ever  presented  to  a  king.  The  peculiar  character  of  the  Petition  is 
what  I  hope,  in  this  study,  to  prove  and  explain.  Such  a  study  would 
hardly  justify  itself  if  its  end  were  only  the  explanation  of  a  unique  bit  of 
parliamentary  procedure.  Procedure  which  never  became  a  precedent  has 
little  value  in  itself.  In  the  case  of  the  Petition  of  Right,  the  procedure 
has  value  because  it  alone  reveals  what  a  struggle  took  place  in  1628  be- 
tween Charles  I  and  the  House  of  Commons.  From  the  content  of  the 
Petition  all  historians  have  recognized  that  in  that  year  a  great  constitu- 
tional issue  was  at  stake.  But  from  lack  of  information  they  have  assumed 
that  the  passage  of  the  Petition  denoted  a  complete  victory  for  the  Com- 
mons, a  result  which  could  have  been  the  end  only  of  a  fight  where  the 
opponents  were  of  very  unequal  strength.  Not  one  writer  has  explained 
why  the  Commons  went  by  petition  instead  of  bill.  Even  Gardiner,  who 
was  the  first  to  point  out  that  they  tried  first  to  go  by  bill,  missed  entirely 
the  significance  of  the  change.  In  missing  this  he  missed  much,  for  in  the 
change  from  bill  to  petition  and  in  the  subsequent  procedure  upon  the 
petition  are  revealed  the  bitterness,  the,  at  times,  almost  complete  hope- 
lessness of  the  struggle.  More  than  that  they  alone  reveal  that  the  end 
was  not  victory,  as  has  been  commonly  supposed,  but  compromise. 

Samuel  Rawson  Gardiner  wrote  his  story  of  the  passage  of  the  Peti- 
tion of  Right  some  forty  years  ago.  The  sources  accessible  to  him  were 
so  much  more  ample,  his  insight  and  critical  faculty  were  so  much  greater 
that  he  has  entirely  superseded  all  who  wrote  before  him.  Since  his  day 
nothing  new  on  this  subject  has  been  written.  Perhaps  one  reason  is  to 
be  found  in  the  fact  that  the  student  hardly  expects  to  find  out  anything 
new  about  so  important  a  subject.  But  an  even  more  probable  reason  is 
to  be  found  in  the  prevalent  feeling  that  Gardiner  made  the  period  of  the 
early  Stuarts  peculiarly  his  own;  that  he  not  only  superseded  all  who  had 
written  before,  but  that  for  all  time  to  come  those  who  follow  can  be  only 
gleaners  in  his  field.  Such  a  conception  betrays  a  misunderstanding  of 
the  real  intention  of  Gardiner's  work.  What  he  really  did  was  to  give  a 
general  survey  of  what  may  be  called,  when  we  consider  the  great  number 
of  important  events  that  are  crowded  into  it,  a  long  period.  For  most 
periods  such  a  work  has  followed,  and  been  based  upon,  particular  studies. 


iv  PREFACE 

Gardiner  had  no  such  help;  he  was  practically  a  pioneer  in  the  field. ^  As 
such,  the  only  way  that  he  cotdd  possibly  cover  the  ground  was  by  at- 
tempting nothing  more  than  to  tell  what  happened.  Such  a  treatment 
ought  to  encourage  rather  than  discourage  further  investigation.  It  is  but 
the  starting  point  for  the  student  who  wishes  to  find  out  the  why  and 
wherefore  of  some  particular  problem. 

With  only  the  material  that  Gardiner  had  it  would  be  possible  for  the 
student,  who  wished  to  make  an  exhaustive  study  of  the  Petition  of  Right, 
to  tell  much  more  than  Gardiner  told.  But  on  the  other  hand  it  would 
be  ridiculous  for  any  student  of  to-day  to  think  that  in  the  forty  years 
which  have  elapsed  since  Gardiner  wrote  those  particular  chapters  of  his 
history,  no  new  material  had  been  found.  Through  additions  to  the  Brit- 
ish Museum  and  even  more  through  the  work  of  the  Historical  Manu- 
scripts Commission  a  great  deal  of  valuable  material  on  this  subject  has 
been  brought  to  light.  It  is  only  since  more  detailed  journals  of  what 
took  place  in  the  lower  House  of  Parliament  in  1628  have  been  discovered 
that  it  has  been  possible  to  ascertain  the  real  nature  of  the  Petition  of 
Right.  Gardiner,  no  more  than  his  predecessors,  knew  enough  to  doubt 
that  the  Petition  had  the  force  of  a  law.  His  additional  material  failed 
him  entirely  for  the  last  month  of  the  Session,  days  so  very  important  for 
the  light  they  throw  on  the  nature  of  the  King's  answer  as  well  as  on  the 
procedure  which  followed.  Even  for  the  first  part  his  material  was  not 
ample  enough  to  make  the  issues  clear.^  With  the  material  which  is  now 
available,  it  is  possible  for  the  first  time  to  make  an  adequate  study.  The 
sources  not  before  used  are  Borlase,  Grosvenor,  Lowther,  the  second  vol- 
ume of  the  Harleian  Notes,  and  that  part  of  the  True  Relation  which 
narrates  the  proceedings  for  the  last  month  of  the  Session.  Including 
the  old  with  the  new,  there  are  six  independent  accounts  of  proceedings 
in  the  House  of  Commons.  Only  one  of  these,  Nicholas,  had  been  used 
in  its  entirety.  Three  are  wholly  new.  It  was  this  wealth  of  new  ma- 
terial which  suggested  as  well  as  made  possible  this  study  of  the  Petition 
of  Right.3 

In  this  study  the  writer  has  assumed  on  the  part  of  the  reader  a  knowl- 
edge of  Gardiner's  account  of  the  Session  of  Parliament  for  1628.  As  has 
already  been  stated,  that  must  be  the  starting  point  for  any  detailed  study 
of  this  period.     By  taking  for  granted  a  familiarity  with  that  work,  the 

•  For  a  comparison  of  the  source  material  used  by  Gardiner  and  his  predecessors,  see  the  biblio- 
graphical notes.  Not  only  was  Gardiner  the  first  to  make  use  of  an  account  which  was  anywhere  near 
complete,  but  he  was  the  first  who  had  any  other  independent  accounts  by  which  to  check  it.  The  diaries 
he  used  are  not  wholly  adequate  for  this  purpose,  as  can  be  seen  from  the  comment  upon  them. 

» It  is  the  Borlase  account  which  makes  one  realize  the  significance  of  the  draft  for  the  judgment 
which  was  brought  in  by  Selden  in  his  report. 

» It  was  while  working  with  Mr.  Wallace  Notestein  on  the  sources  for  the  Session  of  1629  that  I  first 
became  acquainted  with  these  manuscripts.  In  searching  for  copies  of  the  True  Relation,  we  discovered 
this  new  material  for  the  session  of  1628. 


PREFACE  V 

writer  could  omit  a  narrative  of  events  and  an  account  of  the  men  who 
were  leaders  in  the  struggle.  By  disregarding  chronological  sequence  and 
explanation  of  men  and  events  it  became  possible  to  present  the  subject 
topically  and  so  bring  out  at  one  time  all  the  evidence  to  prove  a  given 
point. 

To  the  University  of  Minnesota  the  writer  is  indebted  for  making  it 
possible  to  do  all  the  work  on  this  study  while  in  residence.  Under  a 
research  appropriation,  photographs  were  made  of  the  Grosvenor  manu- 
scripts, and  rotographs  of  the  Borlase  and  Harleian.  Rotographs  of  the 
Nicholas  Notes  were  already  in  the  University  Library,  as  was  also  the 
large  collection  of  printed  sources  which  makes  Minnesota  one  of  the  few 
Universities  in  this  country  for  research  in  the  early  Stuart  period.  Through 
the  kindness  of  Mr.  Worthington  Ford,  the  University  was  enabled  to 
borrow  from  the  Massachusetts  Historical  Society  their  copy  of  the  True 
Relation.  Too  much  can  not  be  said  for  the  advantages  to  be  derived 
from  having  all  one's  material  in  the  same  place.  Good  results  can  not 
be  obtained  if  one  is  obliged  to  consult  one  source  at  a  time  and  then  de- 
pend upon  notes.  The  writing  in  seventeenth  century  diaries  is  so  diffi- 
cult to  decipher  that  one  dare  not  depend  upon  the  work  of  a  copyist, 
but  modem  photography  gives  the  student  the  equivalent  of  the  orig- 
inals themselves.  It  has  made  it  possible  in  this  case  to  compare  with 
each  other  manuscripts  in  Trinity  College,  Dublin;  the  British  Museum; 
the  Record  Office;  and  at  the  University  of  Minnesota. 

The  writer  is  under  obligation  to  Professor  CD.  Allin  for  help  on  the 
judicial  powers  of  Parliament  in  the  seventeenth  century,  to  Dean  W. 
R.  Vance  and  Professor  A.  B.  White  for  reading  and  criticizing  the  whole 
manuscript,  but  especially  to  Professor  Wallace  Notestein  imder  whose 
supervision  the  study  was  prepared  as  a  doctor's  dissertation. 

Frances  Helen  Relf 


CONTENTS 

Chapter 

I.  The  Decision  in  the  Five  Knights'  Case 1 

II.  Statutes,  Precedents,  and  Records 11 

III.  The  Conjunction  of  Abuse  and  Remedy 20 

IV.  By  Bill 27 

V.  By  Petition 36 

VI.  Formal  Action  on  the  Petition  of  Right 44 

Appendix 

A.  The  Commons'  Resolutions 61 

B.  The  Bill  of  Right 63 

C.  Proposed  Answers  to  the  Petition  of  Right 64 

D.  Bibliographical  Notes 68 


KEY  TO  ABBREVIATIONS 

This  monograph  has  been  based  largely  upon  certain  important  manu- 
scripts. For  reference  to  these  in  the  footnotes  it  has  been  found  convenient 
to  adopt  arbitrary  abbreviations,  the  key  to  which  is  given  below.  Where 
copies  of  the  manuscripts  have  been  used,  the  page  references  in  the  foot- 
notes are  to  them  and  not  to  the  originals.  To  avoid  any  misunderstand- 
ing there  have  been  included  in  the  key  the  often-used  abbreviations  of  cer- 
tain printed  material. 

B  The  Borlase  Manuscript,  British  Museum,  Stowe  366. 

G  Sir  Richard  Grosvenor,   Notes  of  Proceedings,  Library  of  Trinity  College, 

DubUn. 

H  ■  Notes,  British  Museum,  Hari.  2313  and  5324. 

L  Lowther,  Notes,  Hist.  MSS  Comn.  13th  Rep.  App.  7,  pp.  33-60. 

M  The  True  Relation.     The  copy  used  is  that  in  the  possession  of  the  Massa- 

chusetts Historical  Society. 

N  Sir   Edward   Nicholas,    Notes,    Miss   Louise   Sumner's  manuscript  edition. 

Library  of  the  University  of  Minnesota. 

L.J.  Joiirnals  of  the  House  of  Lords. 

C.J.  Journals  of  the  House  of  Commons. 

O.P.H.     The  old  Parliamentary  History. 

E.P.  Ephemeris  Parliamenlaria. 


THE  PETITION  OF  RIGHT 

CHAPTER  I 

THE  DECISION  IN  THE  FIVE  KNIGHTS'  CASE 

The  Petition  of  Right  was  the  culmination  of  the  struggle  in  1628  be- 
tween Charles  I  and  the  Commons.  Any  explanation  of  the  Petition  must, 
therefore,  begin  with  an  analysis  of  that  struggle. 

It  was  only  with  the  greatest  reluctance,  urged  on  by  his  need  of  money, 
that  the  King  had  called  his  third  Parliament.  Neither  he  nor  anyone 
else  doubted  that  there  would  be  trouble  with  the  Commons,  that  there 
woiild  be  a  protest  against  his  arbitrary  government.  The  King's  fears 
were  somewhat  allayed  when  he  found  that  the  protest  was  not  to  take 
the  form  that  he  most  feared — that  of  an  attack  upon  his  ministers.  The 
Commons  had  determined  to  fight  principles  rather  than  men.  They  be- 
gan by  an  enumeration  of  grievances.  Miscellaneous  as  these  appear 
on  the  surface,  they  all  go  back  to  a  common  cause,  the  King's  unconsti- 
tutional methods  of  taxation.  Of  these  the  forced  loan  was  the  most 
obnoxious;  it  would  seem  at  first  that  that  was  the  root  of  all  the  evil. 
From  it  had  grown  the  abuses  of  arbitrary  imprisonment  and  billeting, 
both  having  been  used  as  punishment  for  non-payment.  But  as  one  reads 
more  carefully  the  informal  debate  of  those  first  few  days,  he  comes  to 
realize  that  the  Commons  were  conscious  of  a  greater  grievance  than  any 
they  specifically  enumerated.  They  feared  absolutism  and  the  end  of 
parHaments.  It  was  this  fear  that  made  them  focus  their  effort  on  that 
grievance  which  was  most  directly  a  protest  against  arbitrary  government, 
that  of  imprisonment  by  the  King  without  any  cause  being  shown.  That 
the  King  and  his  ministers  realized  fully  the  significance  of  the  protest 
is  shown  by  their  unwillingness  to  yield  on  this  point  though  they  grant- 
ed everything  else  demanded  by  the  Commons.  Thus  arbitrary  imprison- 
ment became  the  great  bone  of  contention  between  King  and  Commons. 
A  careful  consideration  of  this  grievance  becomes,  therefore,  the  first  step 
in  explanation  of  the  Petition  of  Right. 

Unlike  the  other  grievances  enumerated  by  the  Commons  in  the  Peti- 
tion of  Right,  that  of  arbitrary  imprisonment  was  purely  judicial  in  its 
nature.  The  others  were  each  a  general  protest  against  many  particular 
cases  of  a  similar  natiire.  This  harked  back  to  one  special  case,  which 
had  already  been  tried  in  the  courts,  a  case  which  at  the  time  was  always 
referred  to  as  "the  late  habeas  corpus  case,"  but  which  is  better  known 
to-day  as  that  of  the  Five  Knights.^     In  order  to  understand  why  that 

1  It  is  also  popularly  referred  to  as  "Darnel's  Case."  and  that  in  spite  of  the  fact  that  Darnel  refused 
to  plead. 


2  FRANCES  HELEN  RELF 

particular  case  was  made  a  parliamentary  grievance  it  is  necessary  to  ex- 
amine it  in  detail  with  reference,  first,  to  the  decision  of  the  judges. 

The  case  came  up  in  1627,  and  was  the  direct  outgrowth  of  the  attempt 
to  collect  the  forced  loan.  The  commission  and  instructions  for  collect- 
ing the  loan  had  been  issued  in  September  of  1626.2  prom  the  beginning 
there  were  many  who  refused  to  contribute,^  but  it  was  not  until  Hyde 
had  been  made  Chief  Justice  of  the  King's  Bench  that  commitment  for 
refusal  began.  According  to  a  letter- writer  of  the  time,^  commitment  had 
been  urged  by  certain  privy  counsellors  but  the  King  had  stood  out  against 
it;  with  a  subservient  chief  justice,  however,  the  danger  from  such  a  course 
was  greatly  lessened.  From  the  beginning  of  February  the  commitments 
came  thick  and  fast.  As  a  result  many  paid,  but  many  others  continued 
to  refuse,  glorying  in  their  imprisonment  as  a  public  protest  against  the 
illegality  of  the  loan.  As  the  months  went  by,  however,  and  the  hope  of 
release  grew  slight,^  some  of  the  prisoners  began  to  reaHze  that  the  country 
was  threatened  with  a  greater  danger  than  that  of  arbitrary  taxation.  If 
the  privy  coimsellors  were  to  be  permitted  to  commit  men  to  prison  at 
will,  no  resistance  short  of  revolution  could  keep  them  from  enforcing  any 
demand  they  wished.  Then  it  was  that  five  of  the  prisoners^  determined 
to  bring  their  case  before  the  King's  Bench,  and  to  that  end  applied  for 
the  writ  of  habeas  corpus.  The  writ  was  granted;  largely,  no  doubt,  be- 
cause even  as  early  as  this  the  case  had  gained  great  publicity.^  "This 
Habeas  Corpus,"  said  Attorney  Heath,  "was  sent  out  by  special  command, 
because  these  gentlemen  gave  out  in  speeches  .  .  .  that  they  did  wonder 
why  they  should  be  hindered  from  trial."^  Even  with  Hyde  as  chief  justice 
the  King  still  stood  out  against  the  legaHty  of  the  loans  being  tested  in 
the  courts.  He  gave  way  and  consented  to  the  trial  only  after  a  con- 
ference with  the  judges  at  which  he  was  "appeased  by  reasons."^  It 
seems  probable  that  at  this  conference  the  character  of  the  return  to  the 

^Cal.  S.  P.  Dom.,  1625-26.  pp.  435,  436. 

• to  Mead,  October  6,  1626.     Court  and  Times  1:154. 

« to  Mead,  November  4;  December  1.     Ibid.  165,  177. 

'  Mead  to  Stuteville.  June  9,  1627.      "The  gentlemen  in  prison  have  no  hope  of  relief." to 

Mead,  June  30.  "Knightley  was  threatened  by  their  Lordships  with  7  years  more  imprisonment  if  he 
■would  not  yield  to  the  loan."     Ibid.  239,  249. 

•  Sir  Thomas  Darnel,  Sir  John  Corbet,  Sir  Walter  Erie,  Sir  John  Heveningham,  and  Sir  Edmund 
Hampden. 

'  It  must  be  borne  in  mind  that  at  this  time  there  was  no  habeas  corpus  law.  The  writ  was  not 
one  of  right  but  of  grace.  For  the  origin  of  the  writ  see  Edward  Jenks,  "The  Story  of  the  Habeas  Corpus," 
Law  Quarterly  Review  18:64-77.  One  has  only  to  turn  to  some  of  the  older  historians  in  order  to  appreciate 
Professor  Jenks's  study.  Hallam  states:  "The  writ  of  habeas  corpus  has  always  been  a  matter  of  right" 
(Constitutional  History  1:235).  Until  one  gets  away  from  that  idea,  he  is  in  no  position  to  understand 
either  the  Five  Knights'  Case  or  the  Resolution  of  the  Judges  in  34  Eliz. 

•  Cobbett,  State  Trials  3:4. 

•  Pory  to  Mead.  November  2.  Court  and  Times  1 :280.  See  also  Beaulieu  to  Pickering,  November  28. 
ib*4.  294. 


THE   PETITION  OF  RIGHT  3 

writ  of  habeas  corpus  was  determined  upon.  By  stating  simply,  without 
any  extenuating  circumstances,  that  the  parties  were  committed  by  the 
special  command  of  the  King,  the  judges  could  prevent  any  discussion  of  the 
question  whether  refusing  the  loan  was  a  legal  cause  for  commitment. 
Whether  the  judges  expected  that  a  fight  would  be  made  on  the  bigger 
issue,  it  is  impossible  to  say.  They  may  have  thought  that  their  state- 
ment of  the  issue  would  stop  the  suit  entirely,  as  it  did  that  of  one  of 
the  prisoners.  Darnel,  who  was  so  staggered  by  the  return  that  he  refused 
to  plead.i"  But  it  did  not  daunt  the  others.  For  counsel  they  had  some 
of  the  best  lawyers  of  the  time,  Selden,  Noy,  Bramston,  and  Calthrop. 
These  men  made  the  issue  very  plain.  They  maintained  that  according 
to  the  law  any  person  committed  by  the  King  or  Council  without  cause 
shown  should  be  bailed.^^  Attorney  Heath  was  equally  positive  that  the 
law  showed  he  should  be  kept  in  prison  until  the  King  was  ready  to  bring 
him  to  trial.  The  arguments  presented  on  both  sides  were  the  same  as 
those  which  were  later  elaborated  by  the  Commons  and  presented  before 
the  Lords.  There  the  discussion  was  as  purely  judicial  as  at  the  trial;  it 
was,  in  fact,  but  the  case  argued  over  again  in  Parliament.  The  reasons 
for  taking  up  the  case  in  Parliament  are  to  be  found  in  the  supposed  and 
real  nature  of  the  judges'  award  at  the  time  of  the  trial.  This  award  be- 
comes then  the  key  to  the  situation.  Only  by  understanding  that  can  one- 
understand  why  the  subject  of  arbitrary  imprisonment  became  the  great 
bone  of  contention  in  this  Parliament. 

There  were  three  awards  that  could  be  made  by  the  judges  upon  the 
return  to  the  writ  of  habeas  corpus  when  the  prisoner  sued  to  be  bailed.^- 
If  the  prisoner  was  to  be  allowed  bail  the  entry  was  committitur  Mares- 
callo,  et  postea  traditur  in  Ballium.  If  he  was  ordered  back  to  prison,  there 
to  remain  until  brought  to  trial,  the  entry  was  remittitur  quousque  secum- 
dum  legem  deliberatus  fuerit,  or,  as  it  was  more  frequently  entered,  remit- 
titur quousque,  etc.  These  were  both  final  judgments;  but  there  was  another 
award  which  was  not  final.  "If  the  judges  doubt,"  to  use  the  words  of 
Selden,  "only  whether  in  law  they  ought  to  take  him  [the  prisoner]  from 
the  prison  whence  he  came,  or  give  day  to  the  keeper  of  the  prison  to 
amend  his  return  (as  oft  they  do),  then  they  remand  him  only  during  the 
time  of  their  debate,  or  until  the  keeper  of  the  prison  have  amended  his 
return;  and  the  entry  upon  that  is  remittitur  only,  or  remittitur  Prisonae 

i"  Slate  Trials  3:4-5. 

"  By  standing  for  trial  instead  of  delivery,  the  lawyers  avoided  the  extreme  position.  Heath  claimed 
later,  however,  that  in  doing  so  they  implied  a  contradiction,  bail  being  a  kind  of  imprisonment.  The 
answer  to  this  is  summed  up  by  Grosvenor  in  very  concise  terms.  "The  judges  want  noe  respect  to  the 
Kinge:  [they]  will  not  deliver  the  party  but  byle  him,  that  it  may  bee  examined  whether  the  King  hath 
more  busines  agaynst  him  or  not"  (G,  2:46).  The  lawyers,  and  later  the  Commons,  were  not  fighting 
so  much  for  a  principle  as  for  a  practical  means  of  keeping  men  from  confinement. 

'=  This  e.xplanation  is  taken  from  that  of  Selden,  made  before  the  Lords.  L.J.  3:723. 


4  FRANCES  HELEN  RELF 

pracdictae,  \\'ithout  anj-  more.  And  so,"  adds  Selden  by  way  of  explana- 
tion, ''remittiiur  generally  is  of  far  less  moment  in  the  award  upon  the 
habeas  corpus,  than  remittitur  qtwusque,  etc." 

At  the 'trial,  Chief  Justice  Hyde  made  the  award  in  these  words:  "We 
cannot  deliver  you,  but  you  must  be  remanded."^^  At  the  time,  this  was 
taken  as  a  final  judgment.  "A  man  committed  for  some  cause  expressed, 
though  a  great  one,  may  be  bailable,"  commented  a  letter- writer,  "but  if 
the  cause  be  unexpressed,  he  shall  be  unbailable.  .  .  .  The  gentlemen 
are  remanded  to  prison  and  there  like  to  lie  by  it."^^  Another  letter- 
writer  interpreted  the  award  as  approving  of  all  the  late  imprisonments 
rfor  the  loan.  "His  Majesty  had  full  right  and  authority  to  proceed  as  he 
had  done  .  .  .  and  that  all  the  remedy  that  the  subjects  had  therein 
was  to  have  recourse  to  his  majesty's  clemency. "^^  This  was,  indeed,  the 
common  notion. ^^  It  was  this  notion  that  made  arbitrary  imprisonment 
the  great  grievance  of  the  coming  Parliament.  "Arguments  were  made 
and  judgment  given,"  said  Selden. ^^  "I  am  ashamed  of  the  judgment," 
said  Phelips.'*  To  both  these  men  the  crying  shame  was  that  the  issue 
had  not  been  treated  with  the  seriousness  that  it  deserved.  "Although 
Acts  of  Parliament  were  alleged,"  complained  Selden,  "no  notice  was 
taken."  Phelips  protested  that  "this  great  liberty  had  not  so  serious  a 
treaty  as  is  usually  afforded  to  the  meanest  piece  of  ground  or  cottage."^^ 
Both  these  comments  show  that  these  men  considered  that  the  award  was 
a  final  judgment. 
'    .  The  first  explanation  as  to  the  real  nature  of  the  award  came  from 

- — "    Solicitor  Shelton.     The  judgment,  he  asserted,  "was  not  to  authorize  their 
CMi*^!'-  imprisonment,  but  that  the  court  would  take  further  time  to  advise  of 

it. "2"^  He  was  upheld  in  this  view  by  Hakewill  who  declared  that  "the 
judges  had  given  not  a  judgment,  but  an  award,  or  rather  a  rule,  about 
the  habeas  corpus,  and  that  the  gentlemen  might  have  sued  out  another 
habeas  corpus  the  next  day."^^  By  "a  rule"  he  meant,  as  the  judges  explained 
later,  that  whenever  the  return  showed  no  special  cause,  but  only  the 
command  of  the  King,  the  case  must  be  held  for  advisement.  This  was 
established  by  precedent. ^^     But  in  making  his  explanation,  Shelton  in- 

"  Stale  Trials  3:59.  '♦ to  Mead.  November  30.  1627.     Court  and  Times  1:295. 

"  Beaulieu  to  Pickering.  November  28,  1627.     Ibid.  294. 

"  Solicitor  Shelton  complained  in  the  House  that  "it  hath  been  taken  up  in  the  London  streets  that 
the  king  may  commit  one  for  not  loaning  money."     M.  43  verso. 

"B.  16.  »/6t<i.  i*  Ibid.  2»H.  2313:14.     See  also  B,  24  verso. 

«  H,  2313:26.     See  also  M,  49.  or  (for  the  same  account)  State  Trials  3:76. 

n  Whitelocke.     "I  did  never  see  nor  know  by  any  record  that  upon  such  a  return  as  this,  a  man 
was  bayled.  the  King  not  first  consulted."     E. P. ,147-148. 

Jones.     "Persons  committed  by  the  King,  or  Council  were  never  bayled,  but  his  pleasure  was 
first  known."     Ibid.  148. 

Hyde.     "We  do  never  bayl  any  committed  by  the  King,  or  his  Council,  till  his  pleasure  be  first 
known."     Ibid.  150. 


THE  PETITION  OF  RIGHT  5 

troduced  a  new  complication.  "The  judgment,"  he  said,  "was  remittitur 
quousque  etc."  Selden  and  Coke  took  this  up.  "I  heard  heare  a  quous- 
que,"  said  Selden,  "and  thers  nothing  but  a  remittitur,  the  course  of  the 
officer  is  to  enter  quousque  etc.  that  is  till  they  bee  delivered  by  law,  this 
is  the  judgment  that  cann  bee."^^  The  effect  of  this  was  to  raise  the  fear 
that  a  final  judgment  had  been  made.  And  so  when  later  a  subcommittee 
was  appointed  to  search  for  records  and  precedents,  they  did  not  fail  to 
inspect  the  entry  for  the  recent  case.  Selden  reported,  however,  that  they 
"found  only  a  remittitur, ^'^*  with  a  space  left  for  the  entry  of  the  final 
judgment.^^  This  examination  of  the  entry  was  conclusive  proof  as  to  the 
nature  of  the  first  award.  The  question  was  never  raised  again. ^^  The 
blame  for  the  misconception  was  laid  to  "vulgar  opinion,  raised  out  of  the 
flame  of  the  late  judgment. "^^ 

But  though  this  investigation  had  quieted  one  fear,  it  raised  an  even 
greater  one.  In  the  same  report  Selden  told  how,  from  another  source, 
he  had  found  a  draft  of  the  entry  for  the  final  judgment. 

Before  this  Shelton  had,  in  the  House,  twitted  Selden  about  the  prec- 
edents at  the  trial  which  were  not  "rightly  put."^^  He  glibly  offered 
precedents  in  support  of  the  other  side,  boasting  that  he  could  bring  in 
forty  at  least .^^  Wandesford  took  it  up  and  moved  that  the  Solicitor  pro- 
duce his  books  if  he  could  ;^''  hence  Mr.  Solicitor  appeared  at  the  meeting 
of  Selden's  subcommittee  for  searching  records  and  presented  his  notes. 
With  this  introduction  it  is  possible  to  give  that  part  of  Selden's  report 

"3  M,  47-47  !/er5o.  H,  231.3:20  adds:  "that  remittitur  quousque  is  as  well  for  treason,  fellony  etc." 
For  Selden  see  also  above  p.  3.  "What  means  this  quousque!"  asked  Sir  Edward,  ".4  curia  advisari  vult! 
no  it  is  donee  secundum  legem  et  curiam,  deter minelur."     B,  31. 

The  interpretation  of  quousque  remained  a  subject  of  dispute.  Later  when  the  question  was  sub- 
mitted to  the  judges  they  declared  that  remittitur,  remittitur  etc.,  and  remittitur  quousque  etc.,  all  tended 
to  the  same  end,  that  is  to  a  curia  adversari  vult.  L.J.  3:740.  This  is  evidently  the  interpretation  of  two 
of  the  reporters  ot  this  Session  as  seen  in  their  version  of  Browne's  speech  on  March  28. 

"The  judgment  was  remittitur  quousque."     H,  2313:19. 

"None  of  the  judges  gave  sentence  definitely."     B,  28. 

That  it  was  for  advisement.     M,  47. 

24  M,  50  verso-51.     That  is  that  the  case  was  held  for  advisement. 

25  Mead  to  Stuteville,  April  12.     Court  and  Times.  1:336. 

26  The  question  may  well  be  asked,  why  was  not  the  real  nature  of  the  decision  known  sooner?  There 
is  not  sufficient  evidence  on  which  to  base  a  really  satisfactory  answer,  but  some  things  we  do  know.  It 
was  not  an  age  of  publicity.  At  every  turn  one  is  surprised  at  the  lack  of  information  on  the  part  of  even 
members  of  Parliament.  The  whole  debate  leading  up  to  the  First  Remonstrance  presented  to  the  King 
in  June,  1628  is  a  proof  of  this;  an  especially  good  example  being  the  ignorance  regarding  the  issue  of  the 
commission  for  an  excise.  Even  Selden,  who  was  one  of  the  lawyers  for  the  defence,  had  not  been  able 
to  view  the  record  for  the  judges'  award  until  as  chairman  of  the  subcommittee  for  search  he  was  given 
power  to  do  so  by  the  House  (B,  29).  Though  the  Judges  in  April  freely  asserted  that  the  prisoners  might 
have  had  another  writ  the  next  day,  one  can  hardly  conceive  that  (Doderidge  to  the  contrary,  E.P.,  149) 
they  were  anxious  that  they  should  have  done  so.  In  giving  the  award  Hyde  had  said,  "If  you  ask  me 
which  way  you  should  be  delivered,  we  shall  tell  you,  we  must  not  counsel  you."  Darnel's  fear  is  sufficient 
to  show  the  audacity  of  the  other  men  in  continuing  the  trial.  Is  it  to  be  wondered  that  they  feared  to 
renew  the  fight?  They  looked  forward  rather  to  a  Parliament  where,  protected  by  privilege,  the  subject 
could  be  freely  discussed. 

2' Selden  on  April  9.     L.J.  3:723.  28  B,  24  Der5o.  ^^B,  31  verso.  3°  B,  32. 


6  FRANCES  HELEN  RELF 

which  concerned  the  late  case,  in  the  words  of  the  news-writer.  "Hee 
[Selden]  remembred  the  house  of  Mr.  SolHcitor's  intimation  that  he  had 
40  cases  to  this  effect  makeing  for  the  Kinge;  hee  sayes  that  Mr.  Solhcitor 
brought  a  Booke,  but  not  any  case  more,  to  the  Subcommitty  with  the 
notes  of  students  quight  mistaken.  But  hee  mutch  commended  the  In- 
genuity of  IMr.  Sollicitor  that  brought  to  the  subcommitty  the  case  of  Sir 
John  Henningham^^  in  a  copy  of  a  record  of  judgment,  who  beinge  com- 
mitted as  you  knowe  per  mandaium  regis  the  words  are,  ideo  praedictus 
Johannes  rcmiUitiir,  not  mentioning  any  other  cause;  hee  shew^ed  the  copy 
and  it  was  fioll  of  blancks,  the  beginninge  was  confessed  to  bee  written  by 
the  Gierke,  the  latter  ende  by  an  other  hande,  and  so  foisted  in,  and  cer- 
tainly intended  to  have  binne  recorded  and  the  blancks  filled  up."^- 

Selden  read  to  the  House  not  only  the  words  quoted  above  but  the 
complete  text  of  the  judgrnxnt.^^  It  followed  the  usual  form  of  a  judg- 
ment made  after  the  case  had  been  held  for  advisement  and  deliberation;^^ 
and  declared  that,  according  to  the  records  and  precedents,  the  prisoner, 
because  he  was  detained  by  the  special  command  of  the  King,  should  be 
remanded  ^^quousque  etc."  that  is  until  he  should  be  liberated  according 
to  law. 

As  might  have  been  expected,  when  Selden  had  finished  his  report  the 
impulsive  Phelips  was  the  first  one  on  his  feet.  "I  have  heard  many  argu- 
ments used  to  qualifie  that  judgment,"  said  he,  "and  that  it  was  noe  judg- 
ment. I  believed  them  because  I  remembred  the  merit  of  those  judges 
that  gave  it,  but  if  this  record  be  true,  and  the  act  of  the  Court,  give  me 
leave  to  say  it  takes  away  all  qualification,  it  determines  the  question 
against  us  for  ever  and  ever.  I  hope  that  it  was  the  draught  but  of  some 
man  that  desired  to  strike  us  all  from  our  liberties;  I  hope  the  judges  justly 
refused  it.  But  if  the  judges  did  intend  it,  wee  sitt  not  here  to  answer  the 
trust  wee  are  sent  for  if  wee  present  them  not  to  his  Majestic  to  bee  pun- 
ished." He  moved  that  it  be  further  investigated  by  the  Committee, 
which  was  so  ordered. ^^ 

Shelton  was  ready  and  willing  to  explain  his  part  in  the  proceeding. 
He  said  that  he  found  the  draft  among  his  papers,  and  supposed  that 
it  had  come  from  Mr.  Kelyng.^^     So  when,   on  comparing  it  with  former 

"  One  of  the  five  knights  who  was  granted  the  writ  of  habeas  corpus. 

"  B,  33  vtrso. 

"  M,  51.  The  Latin  text  found  there  has  suffered  from  having  been  copied  by  ignorant  clerks.  For 
a  correct  copy  see  L.J.  3:727.  Translated  it  reads  as  follows:  The  aforesaid  return  having  been  seen  as 
we'll  as  the  diverse  ancient  records  on  file  in  the  court  which  concern  similar  cases,  and  mature  deliberation 
already  having  been  held  concerning  the  matter;  for  this  reason,  namely  that  no  special  cause  of  arrest 
or  detention  for  the  aforesaid  John  is  expressed  but  that  in  general  terms  he  is  detained  in  the  said  prison 
by  the  special  command  of  the  lord  King:  therefore  the  said  John  is  remanded  to  the  said  keeper  of  the  said 
marshall's  prison  to  be  kept  safely  until  etc. 

"Selden,  L.J.  3:727.  »»  M,  51. 

"  Mr.  Kelyng  was  the  secretary  of  the  Crown  Office.     L.J.  3:734. 


THE  PETITION  OF  RIGHT  7 

records,  he  found  there  was  no  precedent  to  warrant  it,  he  naturally  sent 
to  Mr.  Kelyng  to  inquire  about  it.  Mr.  Kelyng  was  out  of  town;  hence 
he  spoke  to  Attorney  Heath  about  it,  who  said  that  he  had  sent  it  to  him. 
Shelton  told  Heath  that  it  was  not  entered  but  that  there  was  to  be  an- 
other entry,  and  asked  why  it  was  not  entered.  The  attorney's  answer 
was  very  evasive.  "Hee  told  mee,"  said  the  Solicitor,  "that  hee  observed 
severall  entries  and  hee  said  that  hee  gave  direction  to  draw  a  forme  of  a 
judgment,  and  thereuppon  it  was  brought  him  but  noe  use  was  intended 
to  be  made  of  it  any  further."*^ 

Sir  Edward  Coke  was  positive  that  the  meeting  of  Parliament  was  all 
that  had  prevented  the  entry  of  the  judgment.  He  was  confident  that  it 
was  the  work  of  Mr.  Attorney,  for  no  clerk  coiild  have  drawn  it  except 
according  to  a  precedent .^^  Eliot  agreed  with  Coke  that  but  for  Parlia- 
ment it  would  have  been  entered.^^  Selden  went  even  further.  He  not 
only  believed  that  the  order  would  have  been  recorded  but  for  Parliament, 
but  ''I  do  believe,"  said  he,  "that  it  will  be  recorded  yet  so  soone  as  the 
Parliament  arises,  if  it  be  not  prevented."*" 

The  next  day  Selden  was  ready  to  report  further  particulars  about  the 
copy  of  the  judgment.  Mr.  Kelyng  had  appeared  before  the  subcommittee 
where  he  told  a  very  straightforward  tale.  He  said  that  after  the  Michael- 
mas term  the  Attorney  wished  him  to  make  a  special  entry  for  the  habeas 
corpus  case.  He  protested  that  it  could  only  be  entered  in  the  ordinary 
way.  But  after  persuasion  he  consented  that  if  Heath  wotdd  draw  a  note 
according  to  which  he  should  make  the  draft,  and  if  the  judges  would 
all  consent  to  it,  then  he  would  enter  it.  The  attorney  drew  the  note  and 
Kelyng  took  it  to  the  judges;  they,  however,  refused  to  allow  any  special 
entry.  "But  the  Attorney  diverse  times  sent  to  him  and  told  him  there 
was  no  remedie,  but  hee  must  drawe  it."*i  "And  on  the  5  of  March  hee 
professed  plainly  it  went  against  his  conscience,  yet  still  exceedingly  pressed 
in  the  ende  a  draught  was  made  by  one  Register  Harvey  and  sent  to  Mr. 
Atturney."*2  He  had  not  heard  from  it  since.  "And  as  touching  the 
entrie  of  the  Rolls  hee  said  hee  wondered  that  there  was  no  entrie,  but 
there  is  an  entrie  to  be  made  and  it  useth  to  bee  made  before  this  time."*' 

The  matter  was  referred  back  again  to  the  subcommittee;  but  no  fur- 
ther mention  was  made  of  it  until  Selden  brought  it  up  at  the  conference 
with  the  Lords  on  April  7.  It  was  due,  however,  to  the  feeling  aroused 
by  the  discovery  of  Heath's  draft,  to  the  fear  that  this  entry  might 
still  be  made,  that  the  Commons  made  their  resolutions  of  April   1   as 

"  M,  51  verso.     See  also  B,  34,  and  H,  2313:40. 

»s  M,  52;  B,  34  1-6^50.  39  m,  52. 

«»  B,  34,  verso.  "  M,  55  verso.  «  B,  iSjierso. 

*2  M,  56.     For  Kelyng's  testimony  see  also  H,  2313:41. 


8  FRANCES  HELEN  RELF 

strong  as  they  did.  They  declared  then  that  no  man  ought  to  be  com- 
\  mitted  -^-ithout  the  cause  being  shown;  if  any  were  so  committed,  he  should 
^  be  granted  a  habeas  corpus;  and  if  the  return  failed  to  show  the  special 
cause,  he  should  be  bailed  or  delivered.^'*  At  the  conference  with  the 
Lords  after  reading  the  draft  of  the  judgment  Selden  said:  "If  that 
court,  which  is  the  highest  for  ordinary  justice,  cannot  deliver  him  secundum 
legem ;  what  law  is  there  (I  beseech  you,  my  Lords)  that  can  be  sought  for  in 
anv  inferior  court  for  his  delivery  ?  Therefore,  what  can  the  judgment  with 
qiionsquc  mean,  but  plainly  a  perpetual  imprisonment  awarded  by  the  court: 
Now,  my  Lords,  because  this  dratight,  if  it  were  entered  into  the  roll  (as 
it  was  prepared  for  no  other  purpose),  would  be  as  great  a  declaration 
contrary-  to  the  many  Acts  of  Parliament  already  cited,  and  contrary  to 
all  precedents  of  former  times,  and  to  all  reason  of  law,  to  the  utter  sub- 
version of  the  chiefest  liberty  and  right  belonging  to  every  freeman  of  the 
kingdom;  and  for  that  especially  also  it  supposes  that  divers  ancient  rec- 
ords have  been  looked  into  by  the  court  in  like  cases;  and  that,  by  those 
records,  their  judgments  were  directed;  whereas,  in  truth,  there  is  not  one 
record  at  all  extant  that,  with  any  colour,  .  .  .  warrants  the  judgment; 
therefore  the  House  of  Commons  thought  fit  also  that  I  should,  wdth  the 
rest  that  hath  been  said,  shew  this  draught  also  to  your  lordships. "^^ 

On  the  same  day  that  the  arguments  of  the  Commons  given  at  the  con- 
ference were  formally  reported  in  the  upper  House,  the  Lords  agreed  to 
hear  the  Kings'  counsel.^^  Most  of  the  12th  was  taken  up  with  Heath's 
answer  to  the  Commons.  Though  Heath  was  ordered  to  put  what  he 
had  said  in  writing,'*^  it  was  not  entered  in  the  Journal.  It  was  probably 
similar  to  his  arguments  presented  in  the  conferences  of  April  16  and  17; 
one  might  infer  that  that  was  the  reason  it  was  omitted  from  the  records 
were  it  not  for  the  fact  that  in  the  report  of  the  conference  made  by  the 
Lord  Keeper  to  the  Lords  that  part  concerning  the  draft  of  a  final  judg- 
ment is  slurred  over  with  the  few  words  that  "it  was  to  the  same  effect 
that  he  had  spoken  to  your  Lordships  in  the  House  before. "^^  It  is  evi- 
dent that  the  Lords  desired  no  record  to  be  kept  of  what  Heath  had  said  on 
this  point,  conclusive  proof  that  they  did  not  endorse  it. 

On  the  14th,  the  judges  were  called  before  the  Lords  to  explain  their 
award.  Of  this  the  Lords  allowed  only  a  formal  summary  to  be  recorded.^* 
What  the  judges  said  agreed  with  Kelyng's  testimony;  they  had  all  re- 
fused to  allow  the  attorney's  draft  to  be  entered  as  the  final  judgment. 
They  seemed  to  have  no  intention  of  making  any  final  judgment.^"     The 

•<  For  the  full  text  of  the  resolutions  with  the  variant  readings  see  Appendix  A. 
•»  L.J.  3:727,  "  Ibid.,  732.  "  Ibid.,  737. 

"  Ibid.,  752.     Unfortunately  none  of  the  reporters  for  the  Commons  touched  upon  this  subject. 
<•  E.P.,  147.     This  is  obvious  from  a  comparison  of  the  answer  as  given  in  the  Ephemeris  Parlia- 
mtnlaria,  147-154.  ••  As  given  by  Nicholas,  "there  was  no  entry  made  or  to  be  made."     p.  83. 


THE  PETITION  OF  RIGHT  9 

prisoners  had  long  before  been  delivered  by  command  of  the  King  and 
the  particular  need  for  the  decision  was  past.  The  prisoners  coiild,  the 
judges  had  said,  have  had  a  new  writ  the  next  day  and  so  have  forced  the 
issue.  "I  wish  they  had,"  declared  one  judge,  "because  it  may  be  they  had 
seen  more,  and  we  had  been  eased  of  a  great  labor.""  As  to  what  they 
would  have  seen  we  are  left  entirely  in  the  dark. 

This  investigation  cleared  up  more  than  one  doubtful  point.  In  the 
first  place  it  settled,  beyond  all  question,  the  nature  of  the  judges' 
award  at  the  time  of  the  trial.  Never  again  would  the  men  of  that  time 
consider  it  as  a  final  judgment. ^^  In  the  second  place  it  proved  that  the 
position  taken  by  Heath  was  contrary  to  precedent.  The  words  of  the 
draft  expressed  exactly  what  he  had  contended  for  at  the  trial  as  being 
according  to  law.  Yet  he  found  it  necessary  to  make  a  new  form.  "When 
the  Attorney  upon  the  remittitur  pressed  an  entry,"  said  one  judge,  "we 
all  straitly  charged  the  Clark  that  he  should  make  no  other  entry  then 
such  as  our  predecessors  had  usually  made  in  like  cases. "^^  Thirdly,  it 
showed  that  the  judges  had  not  adopted  "Heath's  view  of  the  statutes 
and  precedents."^*  It  also  makes  certain  what  one  long  before  suspected, 
that  the  issue  was  not  introduced  solely  to  evade  questioning  the  legality 
of  the  loans;  Heath  had  seen  the  advantage  of  having  the  issue  of  im- 
prisonment settled  in  the  King's  favor.  One  may  even  believe  that  he 
had  forced  the  issue  for  his  own  ends,  that  otherwise  he  would  not  have 
given  it  so  much  of  his  personal  attention.^^  It  was,  undoubtedly,  a  great_ 
relief  to  the  Commons  to  find  that  the  judges  had  resisted  the  pressure 
put  upon  them  by  the  attorney;  yet  there  were  some  who  felt  that  in 

51  Doderidge,  E.P  .  149. 

M  Unfortunately  it  did  not  clear  it  up  for  the  historians  who  have  written  on  this  subject,  not  one  of 
whom  has  made  a  clear  statement  of  the  real  nature  of  the  award.  This  is  more  inexcusable  in  Gardiner 
than  in  the  others  for  he  had  access  to  all  the  evidence  necessary  in  order  to  make  such  an  explanation. 
It  convinces  one  of  what  was  strongly  suspected  before,  that  he  made  but  little  use  of  the  Lords'  Journal. 
The  old  Parliamentary  History,  on  which  most  of  the  earlier  historians  had  been  forced  to  depend,  omits 
this  part  of  Selden's  argument.  But  with  the  Journal,  the  full  True  Relation  (Harl.  4771),  and  Had.  2313, 
there  seems  no  excuse  for  Gardiner's  omitting  entirely  this  investigation.  He  does  give  an  extract  from 
Whitelocke's  examination  by  the  Lords  (History  of  England  1603-1642,  6:216  n.)  taken  from  Rushworth, 
but  his  comment  only  proves  his  woeful  ignorance  on  the  point  at  issue.  Of  the  award  itself  he  says  that 
"the  judges  took  a  middle  course"  (6:216),  which  is  perfectly  true.  But  to  him  their  middle  course  con- 
sisted in  refusing  "to  have  any  evidence  on  the  records  of  the  Court  that  they  held  that  the  Crown  might 
persistently  refuse  to  show  cause"  (6:217),  not  that  they  refused  to  make  any  such  judgment.  In  another 
place  Gardiner  commits  himself  even  further.  He  states  that  according  to  that  decision  "the  judges 
ought  to  await  the  king's  announcement  of  the  cause,  however  long  it  might  suit  him  to  withhold  it" 
(6:295). 

ME. P.,  149. 

M  Gardiner  says  that  their  judgment  proved  they  had  (6:216-217).  Heath's  draft  is,  indeed,  in 
exact  accord  with  the  accepted  view  of  the  judgment.  If  any  further  proof  is  needed  that  that  view  is 
wrong,  it  is  surely  to  be  found  in  the  judges'  rejection  of  this  proposed  entry. 

66  In  reporting  the  conference  of  April  16-17  to  the  Commons,  Sir  Edward  Coke  said,  "I  told  the 
Lords  there  were  symtoms  in  every  sicknes,  and  that  the  Attorney  to  bother  to  care  the  busines  was  a 
good  signe."     G,  2:47. 


10  FRANCES  HELEN  RELF 

evading  the  subject  they  had  shirked  their  duty.^^     The  feeling  on  both  sides     ■ 
was  that  after  such  a  thorough  discussion  the  question  must  be  settled  one 
way  or  the  other;"  and  since  the  judges  had  failed,  the  settlement  must 
be  made  by  Parliament. 

••"The  judges  have  not  disclaimed  it,  that  they  could  not  be  bailed,"  said  Coke.     H,  2313:133. 
"  "I  w-ish  with  all  my  heart,"  Heath  had  said  at  the  conference,  "that   ...   a  fitting  bill  might  be 
preferred  to  compose  and  to  settle  well  and  equally  this  great  question."     L.  J.  3:756. 


CHAPTER  II 
STATUTES,  PRECEDENTS,  AND  RECORDS 

It  is  not  difficult  to  surmise  why  the  judges  drew  back  from  making  a 
final  decision,  for  no  authorit}^  bearing  directly  on  the  issue  before  them 
could  be  found  in  statute,  precedent,  or  record.  As  to  what  the  issue  was, 
no  one  was  left  in  doubt.  Sir  Edward  Coke  had  indeed  attempted  to 
prove  that  any  commitment  by  the  special  command  of  the  King  was  ^-^ 
against  the  law,^  but  the  fact  that  such  arguments  were  made  so  little  of, 
shows  how  aside  they  were  from  the  real  question.  The  direct  issue  was 
whether,  when  a  man  was  committed  by  command  of  the  King  or  Coun-  __ — — 
cil  without  any  cause  being  shown,  the  judges  should  bail  or  remand  him. 
The  Commons  maintained  that  he  should  be  bailed,  the  King's  counsel 
that  he  should  be  remanded. 

The  written  law  on  which  the  Commons  ultimately  based  all  their 
claims  was  the  familiar  clause  of  Magna  Carta,  Nullus  liber  homo  .  .  . 
imprisonetur  .  .  .  nisi  per  .  .  .  legem  terrae.  From  this  clause  they 
drew  two  arguments;  the  one  based  on  a  general  interpretation,  the  other 
on  a  particular.  The  general  interpretation  was  that  no  free  man  should  ^ftjjis^v^-  WJ^'^JWW^o 
suffer  the  punishment  of  imprisonment  without  having  first  been  con- 
demned by  due  process  of  law.  On  this  interpretation  there  was  no  dif- 
ference of  opinion.  The  task  that  the  Commons'  lawyers  had  before  them 
was  to  prove  that  this  interpretation  had  direct  application  to  the  case 
at  issue.  "If  the  law  be  that  upon  this  return  the  gentleman  should  be 
remanded,"  argued  Bramston  at  the  trial,  "then  this  imprisonment  shall 
not  continue  on  for  a  time,  but  for  ever;  .  .  .  and  by  law  there  can  be 
no  remedy  for  the  subject:  and  therefore  this  return  cannot  stand  with 
the  laws  of  the  realm  or  that  of  Magna  Charta.  .  .  .  And  if  they  sue  out 
a  writ  of  Habeas  Corpus,  it  is  but  making  a  new  warrant,  and  they  shall 
be  remanded  and  shall  never  have  the  advantage  of  the  laws."^  It  is  the  j^^j. 
same  plea  that  is  made  in  the  Petition  itself.  "x\gainst  the  tenor  of  the  said  ^^^^^ 
statutes  .  .  .  divers  of  your  subjects  .  .  .  were  returned  back  to  sev- 
eral prisons  without  being  charged  with  anything  to  which  they  might 
make  answere  according  to  the  lavv\"  Under  such  a  commitment  the 
prisoner  had  no  legal  means  of  bringing  his  case  to  trial;  unless  released 
on  bail,   he  must  stay  in  prison  during  the  King's  pleasure,  which  was 

1  "The  Kinge  in  his  presence  can  not  cause  any  man  to  bee  arrested,  but  an  action  lyes  against  him 
that  arrests  him.  1  Hen.  7  .  .  .Ed:  the  4th.  was  told  hee  could  not  committ  for  if  you  doo  it  falsly, 
the  party  greived  hath  no  remedy."     B,  17. 

Cresswell  brought  up  the  same  precedent.  "And  Hussey,  Chief  Justice  in  1.  Hen.  VII,  fol.  4  saith, 
That  Sir  John  Markham  told  King  Edward  IV  he  could  not  arrest  a  man    ..."     O.P.H.  7:382. 

estate  Trials  3:8. 

11 


12  FRANCES  HELEN  RELF 

clearly  against  the  clause  in  Magna  Carta.  It  is  evident  that  some  at  least 
of  the  judges  were  impressed  with  this  argument  for  Jones  demanded  of 
Attorney  Heath  that  he  explain  how  the  prisoners  could  ever  be  delivered, 
if  not  by  that  court,  and  Doderidge  asserted  that,  unless  delivered  by  that 
court,  there  was  nothing  ahead  of  them  but  perpetual  imprisonment. ^  To 
the  general  interpretation  of  the  clause  Heath  agreed.  "If  a  man  shall 
be  imprisoned  without  due  process,  and  never  be  brought  to  answer,  that 
is  unjust  and  forbidden."^  But  because  that  was  a  possible  consequence 
of  commitment  without  cause  shown  it  did  not  make  the  commitment 
>itself  against  the  law.  He  illustrated  by  showing  that  any  discretionary 
power  lodged  in  the  King  could  be  used  by  him  to  the  detriment  of  the 
subjects,  yet  they  woiild  not  for  that  reason  argue  that  all  power  be  taken 
from  him.  The  question  reduced  itself  intimately  to  a  trust  in  the  King 
without  which,  according  to  Heath,  there  could  be  no  monarchy.  Since 
the  general  interpretation  would  not  avail,  the  Commons  were  forced  back 
on  their  second  interpretation,  the  technical  meaning  of  legem  terrae. 

This,  as  well  as  the  first  argimient,  had  been  used  at  the  trial.  It  was 
not  heard  as  often  in  the  lower  House  where  the  lawyers'  efforts  had  been 
devoted,  as  Littleton  explained,  "to  the  end  that  no  scruple  might  remain 
in  any  man's  breast  unsatisfied."^  But  in  the  conference  with  the  Lords 
it  was  f\illy  elaborated.  The  first  step  in  the  argument  was  to  prove  that 
in  the  time  of  Edward  III,  "law  of  the  land"  was  interpreted  by  "due 
process  of  law."  For  this  they  cited  28  E.  Ill,  c.  3,  which  is  given  in  the 
Petition,  showing  by  comparison  with  5  E.  Ill,  c.  9  and  25  E.  Ill,  c.  4  that 
the  phrases  were  used  interchangeably.  The  second  step  was  to  prove 
that  "process  of  law"  covered  the  indictment  as  well  as  the  trial.  Little- 
ton quoted  again  from  25  E.  Ill,  c.  4  "that  from  henceforth  none  shall  be 
taken  .  .  .  unless  it  be  by  indictment,  or  presentment  ...  or  by  proc- 
ess made  by  Writ  Original,"^  and  from  42  E.  Ill,  c.  3  "that  no  man  be  put 
to  answer  without  presentment  .  .  .  or  by  due  process  and  Writ  Orig- 
inal."' Heath  was  quick  to  point  out  where  this  narrow  reasoning  was 
leading  them.  "Will  they  have  it  understood  that  no  man  should  be  com- 
mitted, but  first  he  shall  be  indicted  or  presented?  I  think  that  no 
learned  man  will  ofifer  that;  for  certainly  there  is  no  justice  of  the  peace 
in  a  county,  nor  constable  within  a  town,  but  he  doth  otherwise."^  Prac- 
tice proved,  he  insisted  later,  that  these  laws  did  not  refer  to  the  "first 
commitment  or  putting  into  safe  custody"  but  to  "a  legal  proceeding  to 
judgment  or  condemnation."^  Heath  was  in  this  simply  carrying  the 
Commons'  argument  to  the  extreme  in  order  to  show  its  absurdity.  The 
purpose  of  Littleton  had  been  only  to  maintain  that  all  commitments  must 

*  Ibid.,  31-32.  *  Ibid.,  39. 

»  L.J.  3:718.  'Ibid.,  719.  ^  Ibid. ,720. 

•  Stale  Trials  3:38.     Heath  had  deliberately  substituted  arrest  for  indictment.  •  L.J.  3:754. 


THE  PETITION  OF  RIGHT  13 

follow  the  regular  order  of  the  courts  where,  in  every  case,  the  written 
indictment  showed  the  cause. ^^  That  commitment  by  special  command 
was  not  included  within  this  regular  procedure  they  brought  statutes  to 
prove.  In  36  E.  Ill,  Rot.  Pari.  no.  9,  the  King  promised  not  to  make  any 
arrest  contrary  to  the  Great  Charter  "by  special  command."  In  no.  20 
of  the  same  roll  the  King  is  asked  to  deliver  those  "taken  by  special  com- 
mand against  the  form  of  the  charters."  But  a  careful  reading  of  these 
petitions  convinces  one  that  Heath  had  right  on  his  side  when  he  said  that 
they  "were  made  for  redress  of  inconveniences  happening  to  the  subject 
by  the  suggestion  or  information  of  parties."'^  Littleton  insinuated  that 
the  same  was  still  true.  "Kings  seldom  do  those  things  merely  of  them- 
selves, but  as  things  proceed  from  some  man's  suggestion. "^^  All  of  which 
might  be  perfectly  true,  but  it  did  not  make  those  particiilar  laws  applicable 
to  commitment  by  the  King  or  Council.  None  of  the  laws  quoted  bore 
directly  on  the  point  at  issue.  The  Commons  admitted  as  much  when 
later  on  they  were  asked  whether  they  woiild  be  content  with  a  bare  con- 
firmation of  the  laws.  Speaking  of  their  first  resolution  Sir  Edward  Coke 
said:  "The  Acts  of  Parliament  include  this  question  in  substance  but  it 
is  only  implied. "^^  And  Littleton  who  had  claimed  so  much  for  the  statutes 
in  his  arguments  before  the  Lords,  and  who  was  appealed  to  as  the 
authority  on  statute  law,  then  admitted  that  no  layman  could  possibly 
draw  out  their  resolutions  from  those  statutes.^^ 

Attorney  Heath  failed  just  as  completely  as  Littleton  had  failed,  when 
he  attempted  to  prove  that  Westminster  the  First,  c.  15,  and  not  the 
statutes  of  Edward  III,  was  the  real  interpretation  of  the  particular  clause 
in  Magna  Carta.  That  statute  restricted  the  right  of  the  sheriffs  to  bail. 
In  doing  so  it  enumerated  the  four  cases  which  under  the  common  law 
were  not  replevisable ;  "those  that  were  taken  for  the  death  of  a  man,  or 
b}'  the  commandment  of  the  King,  or  of  his  justices,  or  for  the  forest. "^^ 
At  the  trial  Heath  admitted  that  this  law  "was  especially  for  direction  to 
the  sheriffs  and  others;  but  to  say  courts  of  justice  are  excluded  from  this 
statute  I  conceive  it  cannot  be."^^  Later  he  stated  his  position  more  fiilly. 
The  statute  states,  he  explained,  what  was  the  common  law  before  the 
time  of  Magna  Carta.  Magna  Carta  does  not  alter  it.  Then  he  went 
on,   "this  statute   .    .    .   doth  not  recite  that  these  four  sorts  were  not 

1"  Sir  Mathew  Hale  (2:130)  shows  clearly  the  way  in  which  in  the  seventeenth  century  a  man  might 
be  taken  by  command  of  the  King.  "It  must  be  done  by  some  order,  writ,  or  precept,  or  process  of  some 
of  his  courts."  The  argument  of  the  Commons  was  this:  If  the  King's  writ  could  not  imprison  the 
subject  unless  it  contained  the  cause,  why  should  the  King's  warrant?  (See  Cresswell,  O.P.H.  7:383; 
and  Whistler,   M,  45  verso).     If  the  warrant  showed  the  cause  the  two  would  be  essentially  the  same. 

"  L.J.  746.  That  is,  this  form  of  commitment  was  being  used  for  the  benefit  of  private  persons 
who  should  have  proceeded  according  to  the  regular  order  of  the  courts. 

12  Ibid.  747.  "  M,  138.  »  N.  141-142;  H,  5324:23;  G,  3:60-61. 

16  L.J.,  3:720.  is  State  Trials  3:41. 


14  FRANCES  HELEN  RELF 

reple\'isable  by  the  sheriffs  but  generally  that  they  were  not  replevisable 
-at  all."^^  His  contention  was  that  at  the  time  of  this  statute  it  was  recog- 
nized that  according  to  the  common  law  these  four  cases  were  not  bail- 
able^* by  the  judges.^^  The  Commons  came  back  at  Heath  with  the  same 
kind  of  argument  he  had  used  against  their  interpretation  of  the  statutes 
of  Edward  HI.  They  showed  that  such  an  explanation  was  contrary  to 
practice.  Right  along  men  who  had  committed  murder  were  bailed  by 
the  King's  bench.  "Good  Lord!"  ejaculated  old  Sir  Edward  Coke,  "it 
is  done  even*'-  day."-" 

Even  though  the  Commons  were  so  positive  in  their  assertion  that  this 
statute  was  not  to  the  question,  for  it  could  not  tie  the  judges,  they  were 
somewhat  worried  that  so  eminent  an  authority  as  Stamford  was  against 
them.  At  the  trial  Heath  had  supported  his  opinion  by  that  of  the  learn- 
ed judge  of  Queen  Mary's  time.  He  quoted  from  his  book,  Pleas  of  the 
Crown,  fol.  72:  "by  this  [Statute  of  Westminster  First]  it  appears,  that  in 
four  cases  at  the  common  law  a  man  is  not  replevisable. "^^  It  was 
some  tim.e  before  any  one  questioned  Heath's  interpretation  of  Stamford. 
It  was  not,  indeed.  Heath's  interpretation  at  all,  but  the  accepted  explana- 
tion of  that  time ;  the  Commons  freely  admitted  that  Stamford  was  against 
them..^  Shelton  forced  Sir  Edward  Coke  to  a  confession  that  it  was  only 
recently  that  the  old  judge  had  even  admitted  that  Stamford  was  wrong. 
He  cited  a  decision  made  by  Coke  and  the  judges  associated  with  him  in 

"  L.J.  3:754. 

"  It  is  not  necessary  here  to  discuss  the  difference  between  replevy  and  bail,  for  it  does  not  affect 
the  question  involved. 

'•  Professor  Jenks  has  unnecessarily  confused  the  issue  for  the  modern  student.  In  his  article  The 
Story  of  the  Habeas  Corpus  he  states  that  the  right  to  bail  rested  with  the  judges  as  justices  of  the  peace 
not  as  justices  of  the  King's  bench,  when  their  business  was  not  to  bail  but  to  try.  Then  he  goes  on  to 
show  how  this  power  was  expressly  limited  by  statute,  how  in  the  time  of  Richard  III  and  Mary  the  pro- 
visions of  Westminster  First  were  rpenacted  with  order  for  their  strict  observance  by  the  justices  of  the 
peace.  Heath's  silence  on  this  point  is  alone  enough  to  prove  it  a  mistaken  view.  One  can  not  doubt  that 
he  not  only  knew  the  whole  law  on  this  subject  but  that  he  was  stretching  it  as  far  as  possible.  Bailing 
by  the  justices  of  the  peace  (who  replaced  the  sheriffs)  and  bailing  by  the  judges  were  two  distinct  acts. 
At  the  time  of  commitment  the  justice  could  either  put  the  party  in  prison  to  await  trial  or  leave  him  at 
large  on  bail.  But  the  man  who  was  imprisoned  by  the  justice  had  still  the  opportunity  to  bring  his  case 
before  the  judges  by  applying  for  the  proper  writ,  of  which  the  habeas  corpus  was  one.  Upon  the  return 
of  this  writ  stating  the  cause  of  the  commitment  the  judges  were  to  decide  whether  the  prisoner  should  be 
deUvered,  bailed,  or  remanded.  It  was  in  the  nature  of  an  appeal  to  a  higher  court  on  the  validity  of  the  im- 
prisonment. This  view  is  confirmed  by  Sir  Mathew  Hale  who  writing  in  the  seventeenth  century  shows 
how  clearly  distinct  were  the  two  processes.  "If  he  be  bailed  by  a  justice  of  peace  before  commitment,  or 
if  committed  and  brought  into  the  court  of  King's  bench  or  sessions  to  be  bailed"  (2:126).  The  King's 
bench,  he  explained  later,  had  an  original  power  to  bail.  That  is  it  was  not  conferred  upon  it  by  statute, 
and  it  was  not  limited  unless  such  limitation  was  explicitly  stated  by  law.  Sir  James  Fitzjames  Stephen 
makes  this  very  clear  when  he  says:  "The  power  of  the  superior  courts  to  bail  in  all  cases  whatever, 
even  high-treason,  has  no  history.  I  do  not  know,  indeed,  that  it  has  ever  been  disputed  or  modified. 
It  exists  in  the  present  day  precisely  as  it  has  always  existed  from  the  earliest  times.  The  only  matters 
connected  with  it  which  need  to  be  noticed  here  are  some  provisions  of  the  Habeas  Corpus  Act  of  1679" 
(1 :243).   The  power  was  disputed  by  Heath  in  1628.  but  not  at  all  as  Professor  Jenks  disputes  it  in  his  article. 

s»  L.J.  3:729.     For  the  same  thought  expressed  by  Littleton  see  Ibid..  721;  by  Selden,  State  Trials  3:S0. 

«  Stale  Trials  3:43. 

MSce  Cresswell  on  March  22  (B.  23  -jerso);  Selden  on  the  27th  (Stale  Trials  3:80);  and  Sir  Edward 


-     THE   PETITION  OF  RIGHT  15 

13  James,  that  it  was  fit  the  cause  should  not  be  shown  that  being  the 
custom  of  all  antiquity.  "And  Sir  Ed.  Coke  sayd,"  went  on  Mr.  Solici- 
tor, "that  if  the  privy  Councell  committed  any,  hee  is  not  baillable  by 
any  court  of  England"  and  so  the  prisoners  were  returned.  In  that  time 
"in  what  esteeme  was  Stamford!  But  now  0  tempora,  0  mores. "'^'^  There 
is  no  doubt  that  Coke  was  very  much  disconcerted,  as  his  immediate  reply 
showed,  but  at  their  next  meeting  he  was  able  to  make  a  fitting  answer. 
"I  spake  against  the  lones  and  this  imprisonment,"  said  he,  "and  I  looked 
for  a  bang  for  my  pains.  What  if  wee  remand  or  remitt  a  man,  What 
is  that  to  acts  of  Parliament.  ...  I  confess  I  was  for  Stamford  and  cited 
him,  But  when  I  saw  some  of  this  house  puld  out  and  sent  to  the  Tower, 
I  sett  myselfe  to  my  studdy,  and  found  I  had  followed  a  blinde  guide, 
And  now  the  witt  of  man  can  not  deceive  mee  as  I  have  shewde  you  here- 
tofore in  what  I  have  sayd  and  cited. "^*  He  believed  that  they  should 
overrule  Stamford's  opinion.  But  that  Stamford's  opinion  was  against 
them  he  did  not  question. 

It  was  not  until  April  first,  when  the  whole  subject  was  being  drawn 
to  a  conclusion  in  the  House,  that  any  other  interpretation  of  Stamford 
was  advanced.  That  day  Rolle  brought  into  the  House  a  copy  of  the 
Pleas  of  the  Crown}^  "It  was  said,"  he  began,  "that  Stamford's  opinion 
is  agreeable  to  the  late  judgment.  I  will  cleere  him  allso,  for  hee  sayes 
no  sutch  matter.  "2''  Then  he  read  from  the  book,  "and  as  to  the  com- 
mand of  the  justices,  that  is  meant  their  absolute  commandment:  for  if 
it  be  their  ordinary  commandment,  he  is  replevishable  by  the  sheriff,  if 
it  be  not  in  some  of  the  causes  prohibited  by  the  statute. "^^  Littleton 
explained  later  that  if  replevisable  here  was  limited  to  the  sheriff,  then  it 
was  throughout  the  whole  passage,  and  so  Stamford  had  said  nothing  at 
all  as  to  whether  the  parties  were  bailable  by  the  judges. ^^  Equally  with 
the  Commons,  Heath  had  failed  to  prove  his  point  by  statute. ^^ 

Coke  on  the  29th.  "If  the  King  had  such  a  prerogative  and  no  authority  but  one  judge  only  in  Queen 
Marys  time,  shall  that  overrule  us?"  (B,  31). 

Believing  as  they  did  that,  according  to  Stamford,  in  these  four  cases  no  one  was  bailable  by  either 
justice  or  judge,  the  Commons  attempted  to  explain  what  was  meant  by  "command  of  the  King."  Bram- 
ston  maintained  that  it  meant  when  men  were  taken  by  the  King's  writs  and  not  by  word  of  mouth  (State 
Trials  3:8).  But  Mr.  Solicitor  pointed  out  in  the  House,  as  can  easily  be  seen  from  reading  Stamford,  that 
by  command  of  the  King  is  understood  "by  the  King's  person  or  his  Counsell  his  representative  person" 
(H,  2313:14).  He  supported  Stamford  in  this  by  reference  to  Fitzherbert  and  Dyer  who  were  of  the 
same  opinion  as  to  the  meaning  of  "command  of  the  king." 

25  B,  31  verso-32.  24  B,  34  verso. 

25  B,  36  verso.  It  comes  as  a  surprise  to  the  modern  student  to  find  that  these  eminent  lawyers  had 
depended  so  upon  the  traditional  interpretation,  that  they  had  not  gone  immediately  to  the  book  itself. 
We  must  remember,  however,  that  even  printed  books  were  not  easily  accessible.  A  further  example  of  the 
same  kind  of  thing  is  to  be  seen  in  the  interpretation  of  the  judges'  resolution  in  34  Elis;.    See  below  pp.  16-17. 

2«  Ibid.  M,  57.  27  L.J.  3:721.  2S  Jbtd. 

2'  In  this  connection  it  is  interesting  to  note  Heath's  statement  of  a  year  later.  "It  is  true  that  this 
opinion  is  grounded  upon  West.  1,  c.  IS,  but  I  will  not  insist  upon  it.  But  the  constant  opinion  has  always 
been,  that  a  man  committed  by  the  command  of  the  king  is  not  bailable."  State  Trials  3:282. 


16  FRANCES  HELEN  RELF 

Nor  were  either  the  Commons  or  Heath  to  have  any  better  success 
with  precedents.  They  were  freely  quoted  at  the  trial,  in  the  House,  and 
at  the  conferences.  The  trouble  with  each  and  all  of  them  was  that  the 
decision  was  not  based  on  the  straight  issue  but  on  the  conditions  sur- 
rounding the  particular  case.  The  lawyers  quoted  cases  where,  though, 
according  to  the  legal  procedure,  the  special  command  was  the  only  cause 
shown,  yet  the  real  causes  were  known  to  the  judges  and  determined  their 
decision.  For  this  reason  Chief  Justice  Hyde  threw  out  the  precedents 
quoted  at  the  trial.  He  showed  that  either  the  cause  was  known  or  else 
there  were  letters  from  the  King  or  Council  by  virtue  of  which  the  parties 
were  bailed.  Selden  claimed  that  "those  letters  were  not  considerable."^* 
And  when  a  particular  case  was  cited  during  the  time  that  Coke  was  judge 
and  letters  came  to  bail,  he  explained,  "I  bay  led  him  not  by  letters  but  by 
lawe.  Those  great  mens  letters  were  no  letters  of  justice  to  mee,  I  meane 
hindercrs  of  justice. "^^  Nor  were  the  precedents  cited  on  the  other  side 
any  more  convincing.  Hyde  summed  up  the  whole  matter  of  precedents 
when  he  said,  "our  predecessors  have  done  as  we  have  done,  sometimes 
bailing,  sometimes  remitting,  sometimes  discharging. "^^  xhe  most  that 
could  be  claimed  from  the  precedents  was  that  persons  committed  by  the 
King  "were  never  bailed,  but  his  pleasure  was  first  known."  Under  this 
the  judges  could  hold  the  case  for  advisement.  All  this  but  admitted  that 
in  each  case  the  particular  circumstances  were  known  and  were  made  the 
issue;  that  never  before  were  the  judges  required  to  make  the  decision 
that  they  were  called  upon  to  make  in  the  Five  Knights'  Case.  "It  re- 
mains to  take  away  the  mist  of  precedents  in  printe,"  said  one  lawyer; 
"many  committed  by  commission,  but  none  sine  causa;  this  commitment 
is  a  novelist. "^^  There  was  no  precedent  which  bore  directly  on  the  point 
at  issue. 

All  that  remained  on  which  to  base  a  decision  was  the  record  of  the 
judges'  opinions  in  the  past.  Of  these  the  most  important,  the  only  one 
indeed  of  any  weight,  was  that  of  the  judges  in  34  EHz.  It  was  first 
brought  up  by  Heath  at  the  trial  to  prove  that  the  prisoners  should  not 
be  bailed.  Heath  admitted  that  he  had  not  the  record  with  him,  that 
he  quoted  from  memory;  but  that  his  authority  was  "the  book  of  the 
lord  Anderson,  written  with  his  own  hand."^^  It  is  necessary  to  give  his 
account  in  full  in  order  to  note  how  he  garbled  it.  "The  judges  were 
desired  to  shew  in  what  cases  men  that  were  committed  were  not  bailable, 
whether  upon  the  commitment  of  the  queen  or  any  other.  The  judges 
make  answer,  That  if  a  man  shall  be  committed  by  the  queen,  by  her 
command,  or  by  the  privy  council,  he  is  not  bailable. "^^     In  the  confer- 


»  H,  2313:14.     "considerable"  here  means  to  be  considered.  ''  B,  31. 

WE.   P.   150.  "  Saunders,  B,  30.  ^^  Stale  Trials  3  Ai.  ^.h  ibid.,  43-4i. 


THE  PETITION  OF  RIGHT  17 

-■ence  before  the  Lords,  Selden  read  the  resolution  from  Anderson's  report,^^ 
in  order  that  they  might  all  perceive  that  it  was  not  concerned  with  the 
question  of  bailing  as  the  attorney  had  alleged.^^ 

"And  where  it  pleased  your  Lordships  to  will  divers  of  us  to  set  down 
in  what  cases  a  prisoner  sent  to  custody  by  Her  Majesty,  Her  Council, 
or  some  one  or  two  of  them,  are  to  be  detained  in  prison,  and  not  delivered 
by  Her  Majesty's  Courts  or  Judges,  we  think  that  if  any  person  be  com- 
mitted by  Her  Majesty's  commandment  from  her  person,  or  by  order  from 
the  Council  Board,  or  if  any  one  or  two  of  her  Council  commit  one  for 
high  treason,  such  persons,  so  in  the  case  before  committed,  may  not  be 
delivered  by  any  of  the  courts  without  due  trial  by  the  law,  and  judge- 
ment of  acquittal  had."^^ 

The  attorney  had  changed  the  word  delivered  to  hailed.  Here  again, 
as  in  the  case  of  Stamford,  he  was  probably  giving  the  popular  interpre- 
tation of  the  time.^'  But  Heath's  version  of  the  resolution  had  had  no 
■effect  upon  the  award  as  given  by  Chief  Justice  Hyde.  He  had  gone' 
back  to  the  resolution  itself,  comparing  the  different  copies  made  at  the 
time.  "It  is,"  he  said,  "to  this  purpose,  that  if  a  man  be  committed  by 
the  commandment  of  the  king,  he  is  not  to  be  delivered  by  a  Habeas  Cor- 
pus in  this  court,  for  we  know  not  the  cause  of  the  commitment."  Then 
he  went  on  to  declare  the  award,  showing  by  his  phrasing  that  he  based 
it  more  on  this  resolution  than  all  the  rest  put  together.  "If  in  justice 
we  ought  to  deliver  you,  we  would  do  it,  but  upon  these  grounds,  and 
these  records,  and  the  precedents,  and  resolutions,  we  cannot  deliver  you, 
but  you  must  be  remanded."^''  In  the  light  of  this  award,  as  revealed  by 
the  investigation  in  Parliament,  it  is  an  easy  matter  to  interpret  the  reso- 
lution.    That  investigation  had   proved   that   the  judges   gave  no   final 

'6  The  story  of  how  the  Commons  came  into  possession  of  a  copy  of  Anderson's  report  bears  telhng. 
The  validity  of  Heath's  account  had  been  questioned  in  the  House  (see  Selden  H,  2313:14;  Whistler  B,  27 
verso;  Shervile  B,  29  verso);  and  search  had  been  made  for  a  copy  of  the  report.  (It  must  be  remembered 
that  at  this  time  the  report  was  only  in  manuscript.)  But  on  the  30th  of  March,  when  Selden  made  his 
full  report  from  the  committee  for  searching  records,  he  was  obliged  to  admit  that  "the  judges  opinion 
of  the  34th  of  Q.  Eliz.  he  thought  to  have  had  in  a  booke  of  Judge  Andersons  but  could  not  find  it"  (B,  33 
verso).  Later  in  the  same  day  Eliot  stated  that  he  had  Judge  Anderson's  book  in  his  possession  (M,  52). 
^'The  book  was  left,"  he  explained,  "by  that  judge  to  his  sonne,  who  kept  it  as  a  Jewell  in  his  chest:  and 
upon  the  occasion  of  the  late  lone,  hee  sent  for  the  booke  to  London  and  made  it  visible  to  our  eyes,  and 
though  he  held  it  as  a  Jewell,  yett  for  this  publique  use,  hee  was  readye  to  send  for  it."     M,  56. 

3'  "It  hath  been  cited,  and  was  cited,  in  that  great  judgment  given  upon  the  Habeas  Corpus  in  the 
King's  Bench,  as  if  it  had  been  that  upon  such  commitments  the  judges  might  not  bail  the  prisoners;  yet 
it  is  most  plain  that,  in  the  resolution  itself,  no  such  thing  is  contained."     L.J.  3:728. 

^  1  Anderson,  298. 

"  See  Sir  Edward  Coke's  interpretation  which  was  quoted  against  him  (below  p.  21).  Coke  had  ad- 
mitted in  the  House  that  he  had  Anderson  only  as  reported  by  a  student. 

*"  State  Trials  3:59.  Compare  this  with  the  concluding  part  of  the  Resolution  which  reads  as 
follows:  "Nevertheless  the  judges  may  award  the  Queen's  Writs  to  bring  the  bodies  of  such  prisoners 
before  them,  and  if,  upon  return  thereof,  the  causes  of  their  commitment  be  certified  to  the  judges  as  it 
ought  to  be,  then  the  judges  in  the  cases  before,  ought  not  to  deliver  him,  but  to  remand  the  prisoner  to 
the  place  from  whence  he  came."   1  Anderson,  298. 


18  FRANCES  HELEN  RELF 

judgment  but  instead  held  the  case  for  advisement.  All  writers  on  this 
subject  have  agreed  that  the  award  and  resolution  are  in  perfect  accord. 
34  Eliz.  must  mean  then  that  the  case  be  held  for  advisement.^^  If  any- 
further  proof  were  needed,  it  is  to  be  found  in  the  wording  of  the  resolu- 
tion which  is  as  follows:  "to  remand  the  prisoner  to  the  place  from  whence 
he  came."^  What  is  that  but  the  Latin  form  remittitur  prisonae  prae- 
diciaef 

When  one  considers  the  circumstances  which  gave  rise  to  the  Resolu- 
tion of  1592,  this  interpretation  seems  the  natural  one.  Men  were  being; 
imprisoned  by  the  Privy  Counsellors  without  the  particular  cause  being 
given.  B}^  the  writ  of  habeas  corpus  they  were  being  brought  into  court 
and  discharged  as  fast  as  they  were  imprisoned."*^  The  judges  were,  there- 
fore, asked  whether  the  prisoners  should  be  delivered  without  being  brought 
to  trial;  and  the  answer  was  that  they  should  not  be  delivered  without 
"due  trial  by  law,  and  judgement  of  acquittal  had."  Then  descending  to 
the  particular  case  they  told  how  the  person  could  be  brought  to  trial 
when  committed  by  command  of  the  King  and  no  particular  cause  stated. 
When  the  prisoner  was  brought  into  Court  by  the  writ  of  habeas  corpus, 
he  should  not  be  delivered,  for  then  he  would  not  be  brought  to  trial,  he 
should  not  even  be  bailed,  but  held  in  prison  while  the  judges  found  out 
from  those  who  had  committed  him  what  the  particular  cause  might  be. 

But  what  if  the  King  did  not  wish  to  explain  the  particular  cause  to 
the  judges?  This  was  the  issue  presented  in  1628.  Could  the  Resolu- 
tion of  34  Eliz.  help  to  solve  that  issue?  Not  at  all;  like  statutes  and 
precedents  it  must  be  thrown  out  as  having  no  bearing  on  the  subject.** 

*'  There  is  a  striking  parallel  between  the  answer  of  the  judges  in  1592  and  the  answer  of  the  judges- 
in  1628  when,  before  giving  his  first  answer  to  the  Petition,  the  King  put  certain  questions  to  them.  The 
second  question  was  as  follows:  "whether  in  case  a  habeas  corpus  be  brought,  and  a  warrant  from  the 
King  without  any  general  or  special  cause  returned,  the  judges  ought  to  deliver  him  before  they  understood 
the  cause  from  the  King?"  Their  answer  was:  "Upon  a  habeas  corpus  brought  for  one  committed  by  the 
King,  if  the  cause  be  not  specially  or  generally  returned,  so  as  the  Court  may  take  knowledge  thereof ,  the 
party  ought  by  the  general  rule  of  the  law  to  be  delivered.  But  if  the  case  be  such  that  the  same  requireth. 
secrecy  and  may  not  presently  be  disclosed,  the  Court  in  discretion  may  forbear  to  deliver  the  prisoner 
for  a  convenient  time,  to  the  end  the  Court  may  be  advertised  of  the  truth  thereof"  (Gardiner  6:295.  Quoted, 
from  Hargrave  MSS  27,  fol.  97).  In  this  answer  the  meaning  of  presently  should  be  noted.  In  the 
seventeenth  century  it  was  a  synonym  for  present  time,  now  (for  examples  see  G,  105,  106;  B,  193).  Even 
Gardiner  admits  here  "that  the  length  of  the  remand  was  not  to  depend  upon  the  King's  pleasure"  (Ibid). 
This  makes  it  very  plain  that  the  only  object  of  delay  was  in  order  that  the  judges  might  find  out  the  special 
cause.  It  can  not  be  repeated  too  often,  that  before  1627  there  had  been  no  thought  of  deciding  any  case 
except  by  consideration  of  the  special  cause. 

Heath  practically  admitted  this  in  the  following  year  when,  in  again  interpreting  these  resolutions 
he  said:  "Upon  the  whole  matter  the  bailment  of  these  prisoners  is  left  to  your  discretion."  State  Trials  3:286. 

*'  See  note  40. 

"  Selden  quoted  that  part  of  Anderson's  report  as  well  as  the  resolution  itself.  "Her  Majesty's 
writs  have  sundry  times  been  directed  to  divers  persons  having  the  custody  of  such  persons  unlawfully 
imprisoned;  upon  which  writs  no  good  or  lawful  cause  of  imprisonment  hath  been  returned  or  certified; 
whereupon,  according  to  the  laws,  they  have  been  discharged  of  their  imprisonment."  L.J.  3:728.  See 
also  Whistler,  B,  27   verso. 

**  The  reason  that  modern  writers  have  failed  to  interpret  this  resolution  as  Hyde  interpreted  it 
is  that  they  have  not  understood  his  award  in  the  Five  Knights'  case.     Like  the  people  of  that  time  they 


THE   PETITION  OF  RIGHT  19 

The  past  could  furnish  no  solution  for  the  problem.     This  excused  the 

judges  for  not  having  made  a  decision,  but  it  did  not  lessen  the  demand 

for  a  settlement  of  the  question  now  that  it  had  been  raised.     In  spite  of 

the  fact  that  they  found  no  support  in  statute,  precedent,  or  resolution, 

the  Commons  were  yet  confident  that  they  were  in  the  right,  for  they  had 

still  the  fundamental  law  as  a  basis  for  argument.     Back  of  all  written-       ^. 

law  was  the  unwritten  law,  and  this  they  claimed  made  for  the  liberty  of       ^_j>^  . 

the  subject.     But  the  King's  party  was  no  less  confident;  they  based  their     - 

claim  on  the  newer  belief  of  divine  right.     These  two  beliefs  were  bound 

at  some  time  to  clash;  the  clash  came  in  1628.     It  was  the  latter  belief 

which  made  the  abuse;  it  was  the  former  which  made  the  people  declare 

it  to  be  an  abuse  of  power.     More  than  that  the  subjects  for  the  first  time 

had  in  the  writ  of  habeas  corpus,  which  was  then  rapidly  becoming  a  writ 

of  right,  an  efficient  tool  with  which  to  combat  the  encroachment  upon 

their  liberty.     It  is  this  conjunction  of  abuse  and  remedy  which  must  next 

be  considered. 

have  been  blinded  by  the  popular  opinion  regarding  34  Eliz.  and  have  thought  in  both  cases  that  the 
prisoners  were  remanded  until  they  should  be  brought  to  trial.  Hallam  says  of  this  resolution  that  it 
prevented  "the  judges  from  discharging  the  party  from  custody  either  absolutely  or  upon  bail"  (1:379). 
Dubious  as  Gardiner  was  as  to  Anderson's  meaning  in  other  respects,  he  had  no  doubt  but  what  he  meant 
"that  bail  ought  to  be  refused  to  persons  so  committed,  till  the  time  for  trial  came  on"  (6:245  n).  Professor 
Crawford  says  that  "it  afforded  no  relief  when  the  commitment  was  made  in  consequence  of  a  warrant 
from  the  crown  or  the  Privy  Council."  And  then  he  goes  on  to  show  that  it  was  the  direct  precedent 
for  Hyde's  award.     Am    Law  Rev.  42:488. 


CHAPTER  III 
THE  CONJUNCTION  OF  ABUSE  AND  REMEDY 

Statute,  precedent,  and  resolution  all  alike  proved  that  the  direct  issue 
of  arbitrary  imprisonment  had  never  before  been  faced.  This  is  not  to 
sav  that  never  before  had  the  King  committed  any  one  to  prison  with- 
out showing  cause,  or  even  that  such  commitments  had  been  always  for 
matters  of  state  which  required  secrecy;  but  only  that  there  was  no  rec- 
ord in  support  of,  or  in  protest  against,  such  arbitrary  power.  The  rea- 
sons the  protest  came  in  1627  are  two:  the  great  abuse  of  the  prerogative 
aroused  a  strong  feeling  of  opposition  in  the  lawyers,  and  the  writ  of  habeas 
corpus  gave  them  a  legal  means  of  combatting  the  abuse.  The  desire  to 
curb  the  King's  prerogative  was  the  direct  result  of  imprisonment  for  re- 
fusal to  contribute  to  the  loan.  No  better  illustration  of  this  could  be 
desired  than  is  to  be  found  in  Sir  Edward  Coke's  change  of  attitude  be- 
tween 1621  and  1628. 

It  was  to  be  expected  that,  in  searching  for  opinions  by  the  judges, 
the  King's  counsel  would  not  neglect  any  that  had  been  made  by  Sir  Ed- 
ward Coke.  It  has  already  been  noted  how  he  had  had  to  explain  one  of 
his  decisions,^  and  also  how  the  Solicitor  had  caught  him  on  the  interpre- 
tation of  Stamford.  It  was  then  that  he  made  his  memorable  confession 
explaining  how  he  came  to  change  sides.^  His  change  was  due  entirely  to 
•the  fact  that  the  power  of  commitment  had  been  abused.  Had  it  been 
reserv^ed  by  the  King  and  Council  for  only  such  cases  as  concerned  matters 
of  state,  when  there  was  real  need  of  secrecy,  the  power  would  not  have 
been  questioned.  But  when  matter  of  state  was  pretended  when  there  was 
none,  when  there  was  danger  that  this  kind  of  commitment  wo\ild  become 
a  regular  means  for  carrying  on  an  arbitrary  government,  it  was  to  be 
expected  that  many  thoughtful  men  would  change  their  views.  His 
earlier  views  are  seen  most  clearly  in  a  debate  in  the  Parliament  of  1621, 
a  debate  to  which  Attorney  Heath  called  attention  in  order  again  to  show 
that  Sir  Edward  had  not  always  taken  the  side  that  he  did  in  1628.  A 
bill  had  been  introduced  "for  the  better  securing  of  the  subjects  from  wrong- 
ful imprisonment,  and  deprivation  of  trades  and  occupations,  contrary'  to 
the  29th  chapter  of  Magna  Charta."^  The  abuse  against  which  the  bill 
was  directed  was  that  powerful  monopolies,  by  authority  granted  them  in 
their  charters,  were  imprisoning  men  in  order  to  prevent  them  from  carry- 
ing on  their  trades.    The  bill  was  thrown  out  because,  as  framed,  it  covered 

'  See  above,  p.  16. 

«  See  above,  p.  15.  '  C.J.  1 :596. 

20 


THE   PETITION  OF  RIGHT  21 

commitment  by  the  King  and  Council.  The  man  who  more  than  any 
other  was  responsible  for  the  loss  of  the  bill  was  Sir  Edward.  The  rea- 
sons Heath  quoted  him  as  giving  at  that  time  were  that  ''there  are  divers 
matters  of  state,  which  are  not  to  be  comprehended  in  the  warrant,  for 
they  may  be  disclosed;  one  committed  by  the  body  of  the  Council  not 
bailable  by  law,  resolved  so  by  all  the  judges  in  Wraye's  time  (that,  my 
lords,  is  the  resolution  of  34  Eliz.  when  Wray  was  Chief  Justice)  ."^  Heath's 
object  in  bringing  up  this  debate  was  probably  more  to  confuse  the  old 
judge  than  for  any  weight  that  it  would  have.  Its  interest  to  us  is  that 
it  shows  that  prior  to  1627  the  issue  had  never  presented  itself  in  just  the 
way  it  did  then. 

It  was  such  men  as  Coke  who  changed  their  views  at  this  time,  not 
men  like  Heath.  Indeed,  the  argument  used  by  Sir  Edward  in  1621 
is  the  same  as  used  later  by  Heath;  namely,  that  for  reasons  of  state  it  was  - 
often  necessary  that  the  cause  be  kept  secret.  At  the  trial.  Heath  had 
given  examples  in  support  of  this  reason.  In  case  of  a  plot  when  the 
principals  were  still  at  large,  it  was  necessary  that  the  cause  be  concealed 
for  which  the  subordinates  were  committed. ^  This  argument  was  followed 
up  in  the  House  by  the  King's  supporters.  Nethersole  insisted  that  for 
cases  of  conspiracy  there  must  be  such  a  power  ;^  and  May,^  supported  by 
Whitehead, 8  dwelt  on  the  great  disorder  that  would  have  been  caused  if, 
in  some  cases  of  which  he  knew,  the  cause  had  been  revealed.  These 
arguments  had  had  weight  in  1621;  but  in  1628  the  Commons  refused  to 
see  any  such  necessity.  Noy  called  attention  to  the  fact  that  there  was- 
no  reason  why  the  judges  should  not  be  informed  for,  by  their  oath,  they 
were  not  permitted  to  reveal  the  secrets  of  the  King.^  And  Sir  Edward 
conceded  that  if  the  cause  of  commitment  was  of  higher  nature,  as  "sus- 
picion of  treason,  misprison  of  treason,  or  felony,"  the  cause  need  be  stated 
only  in  general.^"  This  would  create  no  inconvenience  for,  as  he  asked, 
"who  is  there  that  suspects  it  not,  does  not  all  Cheapside  knowe  it  as  one 
is  carried  to  the  Tower?"ii  "The  laws  of  England,"  said  another,  "pro- 
vide sufficiently  for  the  safety  of  the  Kings  person.''^^  Not  only  was  there 
no  necessity  but,  as  Selden  pointed  out,  "reason  of  state"  was  not  rec- 
ognized by  the  law."  To  this  argument  Ashley  made  answer,  but  an 
answer  that  was  repudiated  by  the  Lords;  he  claimed  there  was  a  law 

«  L.J.  3:756.  Heath  quoted  this  from  his  own  notes,  but  it  follows  very  closely  the  report  as  given 
in  the  Commons'  Journal  (1:609),  and  in  Nicholas  for  1621,  2:26,  109.  It  is  evident  from  this  that  Heath 
kept  a  diary  during  that  Session.  It  ought  to  be  found  if  it  is  still  in  existence.  Possibly  it  is  his  MS  to 
which  reference  is  made  in  the  Commons'  Journal  (1:526)  as  being  in  the  Inner  Temple  Library. 

estate  Trials  3 -AS.  «  M,  46. 

'  B.  34  verso;  M,  52.  »  M,  56  verso.  *  L.J.  3:762. 

»o/6ti..  3:730.  ^b,  30  verso.  "Brown.     H,  2313:19. 

"  "In  the  matter  of  a  law,  those  points  of  state  are  not  considerable"  (H,  2313:13).  "State  mee 
thinks  should  not  alter  nor  crosse  lawe."     B,  24. 


22  FRANCES  HELEN  RELF 

of  state  for  cases  not  covered  by  the  common  law.^*     Heath  maintained 
that  the  common  law  recognized  a  discretionary  power  in  the  King,  that  the 
Commons'  propositions  took  away  this  power,  and  were,  therefore,  incom- 
patible wdth  a  monarchical  form  of  government.     The  Commons  denied 
that  they  took  any  power  from  the  King;  they  woiild  not  decrease  but 
regulate  it.     "Whatever    the    King's   power  was  by  the  common  law," 
explained  Sir  Edward,    "yet   was   it   qualified  by  acts  of  parliament,  and 
no  man  will  deny  but  the  King  may  limit  himself  by  acts  of  parliament. "^^ 
At  another  time  he  said,   "the  King  hath  distributed  his  judicial  power 
to  Courts  of  Justice."^^     Hakewill  had  a  vivid  way  of  putting  it:    "the 
sword  is  carried  before  him  but  the  scepter  is  in  his  hand."^^     He  insisted 
that  the  common  law  recognized  no  power  in  the  King  to  punish. 
~      From  this  debate  on  the  King's  prerogative,  it  is  very  evident  that  the 
Commons  based  their  argimients  chiefly  on  the  common  law,  the  unwritten, 
fundamental  law  of  the  land.^^     They  used  it  not  alone  for  refuting  an 
absolute  power  in  the  King,  but  as  specific  proof  against  arbitrary  im- 
prisonment.    Gathering    together    all    the    arguments    presented    by    the 
different  men  at  different  times,  it  is  possible  to  reduce  them  to  four. 
Three  of  these  were  against  imprisonment  as  a  punishment  when  there 
had  been  no  trial.     They  correspond  to  the  use  made  of  the  general  in- 
terpretation of  the  clause  in  Magna  Carta  and  can  be  briefly  summarized. 
In  their  first  argument  the  lawyers  approached  the  subject  from  the 
negative  side.     They  tried  to  prove  that  there  was  no  such  power  in  the 
King  because  the  law  did  not  recognize  it.     If  the  power  is  already  in  the 
King,  they  asked,  why  do  we  have  statutes  allowing  such  punishment  for 
offences  ?i9     Carrying  the  argument  a  step  further,  they  pointed  out  that 
two  penalties  are  recognized  by  the  law  as  punishment  for  crime,  impris- 
onment   and   fine.     But    the  King  could  not    arbitrarily  fine  a  man;  it 
must  be  done  judicially .^o     Why  think  then  that  he  could  arbitrarily  im- 
prison him  ?     Another  proof  presented  to  show  that  the  law  did  not  rec- 

"L.J.  3:758. 

"  Ibid.,  761.  '•  M.  50.  "  M,  49. 

»»  See  L.J.  3:717-718  for  Digges's  eulogy  on  the  common  law.  In  his  book  on  The  High  Court  of  Par- 
liament, ProfessorMcIlwaindevotesconsiderablespacetoanexplanationof  the  part  that  the  idea  of  funda- 
mental law  played  in  the  legislation  of  this  period.  "Men  may  not  always  have  been  clear  as  to  what  par- 
ticular rights  or  liberties  were  guaranteed  by  the  fundamental  law.  but  as  to  the  existence  of  such  a  law 
there  was  no  doubt."  "Fundamental  law,"  he  states  in  another  place,  "played  its  greatest  part  in  the 
great  contest  between  the  Parliament  and  the  Stuarts,  which  was  in  its  last  analysis  a  struggle  of  the 
common  law  against  the  king."     pp.  63,  75. 

Dicey  has  the  same  thought  in  mind  when  he  says:  "The  security  which  an  Englishman  enjoys 
for  personal  freedom  does  not  really  depend  upon  or  originate  in  any  genera  1  proposition  contained  in  any 
written  document.  .  .  .  Individual  rights  are  the  basis,  not  the  result,  of  the  law  of  the  constitution." 
The  Law  of  the  Constitution,  202,  203. 

"Selden:  "To  what  end  were  this  in  an  act  of  parhament,  if  imprisonment  were  at  the  kmg's 
will?"    Slate  Trials  3.79. 

»»  As  authority  for  this  statement  Sir  Ed.  Coke  gave  Bracton,  2,  fol.  105,  and  the  resolution  of  all  the 
judges  in  3  R.  2  (L.J.  3:730). 


THE  PETITION  OF  RIGHT  23 

ognize  this  right  in  the  King  was  the  absence  of  any  statutes  regulating 
the  power.  Wherever  the  law  allowed  imprisonment,  that  imprisonment 
was  limited  both  as  to  persons  and  as  to  time.  There  were  no  statutes 
limiting  this  power  in  the  King;  therefore  if  he  had  the  power  at  all  it  was 
a  power  which  could  be  applied  to  all  his  subjects  for  all  time.  "To  ex- 
tend an  imprisonment  without  reason,"  said  Coke,  "is  against  reason. "^i 
To  Sir  Edward  the  lack  of  regulation  was  conclusive  proof  that  the  power 
was  not  recognized  by  the  law. 

The  second  argument  against  arbitrary  imprisonment  was  that  accord- 
ing to  the  common  law  it  made  the  subjects  less  than  freemen.  Imprison- 
ment was  a  civil  death.  According  to  the  common  law  it  could  be  in- 
flicted upon  the  freeman  only  by  due  process  of  law  for  having  violated 
the  peace,  that  is  for  having  used  force.  No  freeman,  so  the  lawyers  claimed, 
could  be  imprisoned  for  any  other  offence  unless  it  was  explicitly  provided 
for  by  statute."  Moreover,  in  every  case  the  imprisonment  must  be  for 
some  cause  in  the  person  confined,  not  in  the  will  of  him  who  commits.^^ 
Not  alone  would  those  committed  by  this  arbitrary  power  suffer  from  loss 
of  their  status  as  freemen;  it  would  lower  the  condition  of  every  subject. 
Arbitrary  imprisonment  made  every  man  a  "tenant  at  will  for  his  liberty. "^^ 
He  was  no  longer  free  but  a  bondman,  for  he  had  lost  "the  sole  distinc- 
tion of  a  freeman."  This  was  a  note  that  Selden  continually  harped  upon. 
"Whoever  can  say  I  can  imprison  him,  I  will  say  he  is  my  villein. "^^  Coke 
pointed  out  that  such  a  person  was  worse  than  a  bondman.  He  cited 
"two  book  cases"  to  show  that  a  villein  could  not  be  imprisoned  by  his 
lord  without  cause  shown.^^  This  was  a  line  of  reasoning  well  calculated 
to  stir  the  heart  of  the  average  Englishman. 

An  argument  which  appealed  to  a  sentiment  no  less  strong  was  a  com- 
parison of  the  rights  granted  to  the  subject  by  the  common  law  for  pro- 
tection of  his  person  and  for  protection  of  his  property.  No  idea  was  more 
firmly  fixed  in  the  minds  of  men  at  that  time  than  the  right  of  the  individ- 
ual to  property;  it  was  much  stronger  than  it  is  to-day.  It  controlled  the 
theory  of  taxation.  "It  is,"  said  Digges,  "an  undoubted  and  fundamental 
point  of  this  so  ancient  a  law  of  England,  that  the  subjects  have  a  true 
property  in  their  goods,  lands,  and  possessions :  the  law  preserves  as  sacred 
this  meum  and  tuum,  which  is  the  nurse  of  industry,  and  mother  of  courage; 
for,  if  no  property,  no  care  of  defense.     Without  this  meum  and  tuum 

2»L.J.  3:730. 

"  See  Cresswell's  speech,  O.P.H.  7:379;  and  Shervile,  M,  48. 

^  Pym.     "The  motive  of  the  punishment  must  be  in  the  party  offending."     B,  118. 

"L.J.  3:729. 

^  Stale  Trials  3:79.  See  also  Ibid.,  18.  Digges  moved  that  the  records  be  viewed'to  see  "whether 
this  power  of  the  Kinge  trenches  upon  us  as  Servants  or  subjects."     B,  17  verso. 

2»  L.J.  3:729.  The  cases  cited  were  "7  E,  3.  fol  .  50  in  the  new,  348  in  old  print."  and  "33  E,  3.  Tet. 
Trash.  253,  in  faux  Imprisonment,  Fitz." 


24  FRANCES  HELEN  RELF 

there  can  be  neither  law  nor  justice  in  a  kingdom;  for  this  is  the  proper 
object  of  both."^^  But  great  as  was  the  respect  for  property,  great  as  was 
the  protection  given  it  by  the  law;  yet  greater,  so  ran  the  argument,  was  the 
protection  given  to  the  person.  The  lawyers  gave  incident  after  incident 
to  show  that  a  man  was  allowed  rights  for  the  protection  of  his  body  which 
he  was  forbidden  to  use  for  the  safe-keeping  of  his  possessions. 

But  all  of  this  proof  was  against  arbitrary  imprisonment  in  general. 
What  was  needed  was  proof  against  imprisonment  before  trial.  The 
proof  of  this,  Selden  explained,  lay  in  the  remedies  that  were  provided  against 
false  imprisonment .28  These  remedies  were  the  three  writs  for  the  en- 
largement of  a  freeman  falsely  imprisoned — Odio  et  Atia,  Homine  replegi- 
ando,  and  Habeas  Corpus.  The  first  two  were  directed  to  the  sheriff,  and 
consequently  were  of  no  avail  when  the  party  had  been  imprisoned  by  the 
command  of  the  King.^^  The  writ  of  habeas  corpus  was  the  King's  order 
to  the  keeper  of  the  prison  to  bring  the  prisoner  into  the  Court  together 
with  the  cause  of  his  commitment  or  detention,  whichever  it  might  be. 
Upon  this  return  the  Court  judged  the  efficiency  of  the  cause.^°  This 
argument  shows  how  closely  bound  together  were  the  subjects  of  arbitrary 
imprisonment  and  the  writ  of  habeas  corpus.  Granted,  as  the  older  his- 
torians would  have  us  believe,  that  the  writ  was  at  this  time  one  of  right, 
not  of  grace,  and  the  case  for  the  Commons  is  greatly  strengthened.  But 
if  it  was  only  in  the  process  of  becoming  so  the  situation  is  changed.  The 
second  of  the  Commons'  resolutions  of  April  1  is  sufficient  proof  that 
it  was  not  yet  a  writ  of  right. ^^  Heath  denied  that  it  was  even  the  proper 
mode  of  procedure.  He  claimed  at  the  trial  that  the  prisoners  should  have 
petitioned  the  King  for  release. ^^  At  the  conference  with  the  Lords,  Sel- 
den answered  Heath,  "Neither  is  there  in  the  law  any  such  thing,  nor 
ever  was  there  mention  of  any  such  thing  in  the  laws  of  this  land,  as  a  peti- 
tion of  right  to  be  used  in  such  cases  for  the  liberty  of  the  person. "^^  Yet 
of  all  those  who  were  committed  for  refusing  the  loan,  we  know  of  none, 
except  the  five,  who  asked  for  the  writ  of  habeas  corpus.^*  We  know, 
moreover,  that  Eliot  proceeded  by  petition  to  the  King  for  his  liberty 

"L.J.  718. 

»  State  Trials  3:78.  One  needs  to  make  no  apology  for  quoting  Selden  so  freely  on  the  interpretation 
of  the  common  law.  He  was  the  great  authority  for  the  Commons  on  that  subject,  as  was  Littleton  on 
statute  law. 

'•  See  above  the  Statute  of  Westminster  p.  13. 

«»  For  the  writ  in  full  see  State  Trials  3:11. 

«  "Now,  my  Lords,"  said  Selden,  "if  any  man  be  so  imprisoned,  by  any  such  command  or  otherwise, 
in  any  prison  wheresoever  through  England,  and  desire,  either  by  himself,  or  by  any  other  in  his  behalf, 
this  writ  of  habeas  corpus  (for  the  purpose)  in  the  court  of  King's  Bench,  the  writ  is  to  be  granted  him, 
and  ought  not  to  be  denied  him,  no  otherwise  than  any  ordinary  original  writ  in  the  Chancery,  or  other 
common  process  of  law,  may  be  denied;  which,  among  other  things,  the  House  of  Commons  hath  resolved 
also  upon  mature  deliberation."     L.J.  3:722.     For  the  resolution  see  Appendix  A. 

»2  State  Trials  3:50.  »^  L.J.  3:722.  »*  State  Trials  3:2,  editor's  note. 


THE   PETITION  OF  RIGHT  25 

and  the  benefit  of  the  law.^^     According  to  Forster  he  took  this  course 
after  having  been  consulted  by  those  who  went  the  other  way.^^ 

In  this  question  of  the  proper  procedure  for  obtaining  release  from 
arbitrary  imprisonment  was  contained  the  whole  issue  at  stake  between 
the  Commons  and  the  King,  the  protest  of  the  people  against  personal, 
or  council,  government.  The  commission  for  the  loan  came  from  the 
Council;  those  who  refused  to  pay  were  examined  by  the  Council;  those 
committed  were  committed  by  order  of  the  Council;  it  was  but  in  keeping 
that  for  release  they  petition  the  Council.  The  protest  of  the  Commons 
was  that  the  Council  was  taking  upon  itself  the  functions  not  only  of  Par- 
Hament  but  of  the  courts  as  well.^^  The  effect  of  the  writ  of  habeas  cor- 
pus was  to  bring  the  case  into  the  regular  court.  It  is  obvious  then  why 
the  great  common  law  lawyer  should  declare  against  petition  and  for  the 
writ.  It  makes  clear  also  the  significance  of  the  development  of  that 
writ.  But  until  it  had  a  firmer  status  than  in  1628,  it  could  hardly  be 
used  as  absolute  proof  against  the  legality  of  arbitrary  imprisonment. 

From  this  discussion  it  is  possible  to  see  why,  to  the  Commons,  the 
production  of  Anderson's  report  had  been  an  occasion  for  great  rejoicing, 
why  the  general  opinion  was  that  "it  made  for  the  liberty  of  the  subject 
in  direct  terms."^^  What  appealed  to  them  was  the  obvious  intent  of 
the  judges  that  the  parties  should  be  brought  to  trial.^^  Though  not  in 
as  positive  terms  as  might  have  been  desired,  it  yet  endorsed  the  judges' 
action  in  granting  the  writ  of  habeas  corpus  in  all  cases.*"  As  has  been 
pointed  out,  this  was  the  only  writ  by  which  the  subject  could  bring  his 
case  into  court  when  committed  by  the  special  command  of  the  King.*^ 
The  judges'  resolution  was  a  mile  stone  in  the  development  of  that  writ.  _ 
It  definitely  established  it  "as  a  substantive  remedy,  which  exists  as  of 
right  for  all  prisoners."^  The  purpose  of  the  writ  was  to  test  the  validity 
of  an  imprisonment.  It  made  it  possible  for  the  lawyers  in  1627  to  test 
the  validity  of  arbitrary  imprisonment.     The  comparatively  late  develop- 

36  Forster,  Life  of  Eliot  1 :410-414.  '6  Ibid.,  408. 

3'  For  this  protest  see  the  First  Remonstrance  and  the  debates  leading  up  to  it.  This  is  the  significance 
of  the  fourth  proposition  offered  by  the  Lords  as  their  judgment  on  the  "late  habeas  corpus"  case.  "In  all 
cases  within  the  cognizance  of  the  common  law,  and  concerning  the  liberty  of  his  subjects,  his  Majesty 
will  proceed  according  to  the  common  law  of  the  land,  and  according  to  the  laws  established  in  the  kingdom, 
and  m  no  other  manner  or  use."     L.J.  3:769. 

33  B,  36. 

39  Selden  was  reported  as  having  said  at  one  of  the  conferences  that  the  assurance  of  trial  meant 
that  the  cause  must  be  shown,  for  there  could  be  no  trial  otherwise.     L.J.  3:762. 

"Mr.  Selden:  the  resolution  34  Eliz.  speaks  only  of  those  who  were  committed  with  a  cause,  for  thei 
say  thei  could  not  be  delivered  but  by  triall  of  law;  there  must  then  be  a  cause  expressed,  to  be  subject 
to  the  triall  "  H,  2313:18a.  This  is  the  18th  page  counting  from  the  back  of  the  book  forward.  The 
conference  of  these  two  days  was  recorded  in  that  way. 

<»  In  the  light  of  the  present  interpretation  it  is  possible  to  understand  all  that  that  meant  to  the 
Commons. 

«>  L.J.  3:722  «Jenks,  74. 


26  FRANCES  HELEN  RELF 

ment  of  this  writ  explains  to  a  great  extent  why  the  validity  of  such 
commitment  had  not  been  tested  before.  The  other  side  of  the  question 
is,  of  course,  that  only  the  great  abuse  of  the  power  would  make  the 
need  felt.     In  1627  these  two,  remedy  and  abuse,  came  together. 

Then  followed  the  struggle  which  resulted  in  the  Petition  of  Right. 


CHAPTER  IV 
BY  BILL 

This  long  explanation  of  the  arguments,  pro  and  con,  which  were  pre- 
sented at  the  trial  and  elaborated  in  Parliament,  has  been  necessary  in 
order  to  explain  why  the  Commons  were  impelled  to  furnish  a  solution  for 
the  problem  of  arbitrary  imprisonment.  The  explanation  has  been  fruit- 
less unless  it  has  proved  that  the  impelling  force  came  from  the  conjunc- 
tion of  abuse  and  remedy,  unless  it  has  proved  that  the  basis  in  the  past 
for  the  position  taken  by  the  Commons  was  only  of  a  general  nature  and 
in  direct  opposition  to  the  rapidly  developing  conception  of  kingship  held 
by  the  Stuarts. 

The  effort  of  the  Commons  to  settle  the  question  of  arbitrary  imprison-  ■ 
ment  resulted  in  the  Petition  of  Right.  It  is  only  one  of  the  four  subjects 
therein  contained,  but  it  is  the  one  which  throughout  was  the  great 
stumbling  block,  the  subject  of  debate  and  conference.  In  debate  and 
conference  are  to  be  found  the  explanation  for  the  Petition  of  Right — the 
reason  for  the  change  from  bill  to  petition,  and  all  that  that  change  implied. 

The  first  step  towards  the  framing  of  a  bill  had  been  the  resolutions  of 
the  Commons^  which  they  passed  on  April  1,  1628  and  immediately 
sent  up  to  the  Lords  for  their  consideration.  The  second  step  was  the 
Lords'  resolutions  which  they  sent  down  to  the  Commons.  These  came 
on  April  25,  after  the  Lords  had  had  time  to  weigh  the  arguments  that 
had  been  presented  before  them  at  the  conferences.  The  Lords  had  in  a 
sense  occupied  the  position  of  judges,  and  their  resolutions  are  in  the  na- 
ture of  a  decision  based  on  the  arguments,  rather  than  an  answer  to  the 
resolutions  of  the  Commons.  Yet  they  disclaimed  that  they  were  a  deci- 
sion in  the  sense  of  being  final;  they  would  have  them  considered  merely 
as  a  starting  point  for  future  conference. ^  The  resolutions  were  in  five 
parts.  The  first  declared  that  Magna  Carta  and  the  six  statutes  were  in' 
force;  the  second  that  according  to  statute,  custom,  and  law  every  freeman 
had  a  ''fundamental  propriety  in  his  goods"  and  liberty  of  his  person; 
the  third  guaranteed  to  the  subject  all  the  liberties,  privileges,  and  rights 
enjoyed  by  their  ancestors;  the  fourth  promised  that  all  cases  falling  with- 
in the  cognizance  of  the  common  law,  and  concerning  the  liberty  of  the 
subjects,  should  proceed  according  to  that  law.  These  four  were  general 
and  vague  where  those  of  the  Commons  had  been  direct  and  expHcit; 
but  the  fifth  was  of  quite  a  different  character.  It  declared  in  no  mis- 
takable  terms  that  the  King's  prerogative  was  "intrinsical  to  his  sovereignty 

»  For  these  resolutions  see  Appendix  A.  ^  Lord  Say  and  Seal,  B,  102. 

27 


28  FRANCES  HELEN  RELF 

and  entrusted  him  from  God,"  and  then,  coming  to  particulars,  it  declared 
that  when,  for  reasons  of  state  it  was  necessary  to  imprison  without  show- 
ing cause,  the  King  would  "within  a  convenient  time  .  .  .  express  a  cause 
.  .  .  either  general  or  special."^ 

The  attitude  of  the  Commons  toward  the  first  four  of  the  Lords'  reso- 
lutions was  that  they  were  meaningless,  that  to  pass  them  was  to  accom- 
plish nothing.  Sir  Edward  Coke  held  them  up  to  ridicule,  phrase  by  phrase. 
"Our  resolutions,"  he  summed  up,  ''are  plain  and  open  and  clear,  what 
theirs  are  we  are  to  dispute."^  "Our  own  are  all  cleere  points  of  law," 
said  Selden,  "the  answeare  is  not  what  is  law,  but  what  they  would  have 
to  be  law."°  Yet  to  keep  a  good  feeling  with  the  Lords  some  were  will- 
ing to  accept  them;  there  was  no  harm  in  reaffirming  Magna  Carta.  But 
on  the  fifth  the  opposition  was  positive;  to  accept  that  was  to  decline  their 
own  propositions.     "Reason  of  State,"  said  Coke,  "lames  Magna  Carta."^ 

They  all  realized,  however,  that  criticism  would  get  them  nowhere. 
Few  were  ready  with  a  plan  of  action.  Sir  Edward  Coke,  in  his  blunt  way, 
was  opposed  to  all  compromise.  If  the  Lords  would  not  yield  to  them, 
then  let  them  go  directly  to  the  King.^  But  the  spirit  of  the  House  was 
conciliatory.  It  was  Wentworth  who  presented  the  plan  that  was  to  be 
followed.  He  proposed  that,  ignoring  the  fifth  proposition  entirely,  but 
using  the  others  as  much  as  possible,  they  go  by  bill,  explaining  lex  terrae 
and  attaching  a  penalty  for  the  violation  of  the  law.  Two  days  had  been 
taken  up  with  this  debate,  Friday  and  Saturday.  On  Monday,  April  28, 
before  the  debate  could  be  resumed  the  Commons  were  called  up  to  the 
Lords'  House  to  hear  a  message  from  the  King.  The  substance  of  the 
message  was  that  every  day  the  need  for  supply  increased,  that  debate 
on  the  liberty  of  the  subject  was  the  cause  of  delay;  therefore,  in  order 
to  put  a  stop  to  the  dela,y  the  King  would  declare  his  intention.  It  was 
equivalent  to  the  first  four  propositions  of  the  Lords,  that  he  would  con- 
firm Magna  Carta  and  the  six  statutes,  maintain  the  subjects  in  their 
just  liberties,  and  govern  according  to  the  laws.  For  this  he  asked  them 
to  rely  upon  his  promise.^  After  their  return  to  their  own  House,  Secre- 
tary Coke  enlarged  upon  the  King's  message.  He  argued  that  they  would 
get  as  much  by  the  promise  as  by  law  for  "whatsoever  law  we  shall  make 
it  must  come  to  his  Majesty's  allowance."  He  pointed  out  the  advantage 
of  the  promise  over  a  law.      "His  promise  is  bound  with  his  own  heart, "^ 

»L.J.  3:769. 

*  M,  126  verso.     "Ours  are  playne  and  do  conclude  something,  these  do  not."     B,  109  verso. 
»B,  110. 

•  B,   109  verso.     Who  shall  judge  of   "convenient  time"  questioned  Selden.      "At    this    little    gap 
every  man's  liberties  in  time  may  go  out."     M,  128  verso. 

'B.  110.  8  O.P.H.  8:77-78.  *  Ibid.,  &l. 


THE  PETITION  OF  RIGHT  29> 

but  against  a  law  the  King  could  use  his  dispensing  and  pardoning  power,!" 
"all  law  with  the  wrath  of  a  King  is  nothing. "^^ 

From  both  the  Lords  and  the  King  had  come  offers  to  compromise; 
nor  were  there  lacking  those  in  the  House  who  would  urge  the  same  thing. 
Rudyard  would  have  had  them  take  stock  of  what  they  had  already  won. 
The  King's  counsel,  the  judges,  the  Lords,  and  the  King  had  all  declarec 
that  the  laws  were  in  force;  they  were  assured,  then,  of  the  reenacting  of 
Magna  Carta.  He  doubted  not  but  by  free  conference  with  the  Lore 
they  would  gain  liberty  of  persons  and  goods;  he  hoped  that  they  might 
have  a  law  against  forced  loans  and  privy  seals;  but  it  was  more  important 
that  they  keep  Parliament  than  that  they  should  gain  all  they  desired 
in  this  Session. !2  g^^t  in  spite  of  the  King's  message  or  the  appeals  of  -- 
Secretary  Coke  and  Rudyard,  the  Commons  went  on  with  their  bill.  After 
some  debate  it  was  resolved  that  a  select  committee  be  appointed  "to 
draw  a  bill,  wherein  shall  be  contained  the  substance  of  Magna  Charta 
and  those  other  statutes  that  concerne  the  liberty  of  the  subject  in  his 
person  and  estate,  together  with  the  resolutions  of  this  house  concerning 
those  things."!'  Seemingly  neither  the  efforts  of  the  Lords  nor  of  the  King 
had  been  able  to  weaken  the  determination  of  at  least  a  majority  of  the 
Commons.  On  the  afternoon  of  the  28,  the  committee  met  and  framed 
a  bill^  which  was  presented  by  Sir  Edward  Coke  the  next  morning.  The 
bill  was  framed  to  cover  imprisonment,  taxation,  and  billeting.  For  a 
preamble  it  recited  the  statutes  which  the  Commons  considered  had  been 
violated.  Those  against  imprisonment  are  the  same  as  had  been  present- 
ed by  Littleton  with  the  addition  of  25  E.  1,  c.  2,  that  all  judgments  con- 
trary to  Magna  Carta  are  null  and  void.^^  The  resolutions  were  to  follow 
the  statutes,  but  only  the  first  and  third  are  given  in  the  h\\\}^  At  the  end 
of  the  bill  was  to  be  placed  the  penalty  for  its  violation;  this,  however, 
as  Coke  explained,  was  not  yet  resolved  upon.^^ 

In  transforming  their  resolutions  into  a  bill  many  practical  considera- 
tions arose  which  had  not  before  been  considered.     The  resolutions  had 
stated  principles,  things  that  "ought  to  be."     The  bill,  as  proposed  by 
Went  worth,  was  to  be  one  by  which  these  principles  could  be  enforced.- — 
It  was  here  that  the  split  arose  among  those  in  the  House  who  a  month 
before  had  been  united  in  support  of  the  resolutions.     On  one  side  were\ 
the  opportunists  led  by  Wentworth  who  would  abandon  whatever  could  ■ 
not  be  enforced;  on  the  other  side  were  the  reformers  led  by  Sir  Edward 
Coke  who  would  hold  to  their  resolutions  regardless  of  any  immediate, 
practical  end.      These  terms,  opportunist  and  reformer,  were  never  used  at 

'"G,  2:136.  "B,  114De«o. 

"O.P.H..  8:81-84;  G.  2:137-139.  "  H,  2313:128.  "  M,  135. 

15  H.  2313:130;  B,  117;  G,  2:150;  M.  136  verso. 

'«  For  the  bill,  as  found  in  M,  137,  see  Appendix  B.  i'  G.  2:150. 


30  FRANCES  HELEN  RELF 

the  time  to  designate  the  followers  of  Went  worth  and  Coke,  but  they  so 
aptly  characterize  the  two  groups  that  it  has  been  found  convenient  to 
refer  to  them  in  this  way.  The  Five  Knights'  Case  was  an  effort  to  test 
the  \mt  of  habeas  corpus,  an  effort  to  make  it  more  definite,  even  to  in- 
crease its  effectiveness,  by  judicial  decision.  To  many  the  struggle  that 
had  been  carried  on  in  Parliament  up  to  this  time  had  only  this  end  in 
view.  To  these  a  habeas  corpus  law  was  the  natural  outcome  of  the 
struggle.  They  argued  that  if  those  who  were  committed  at  Whitehall 
could  be  quickly  and  surely  released  at  Westminster  the  commitments 
would  inevitably  cease.  But  there  were  some  who  were  more  farsighted. 
Their  position  it  is  that  is  made  clear  in  this  three  days'  debate.  Their 
reasons  for  holding  fast  to  the  first  resolution  which  had  become  the  great 
stiunbling  block  are  no  longer  left  in  doubt.  Rich  started  the  ball  rolling 
by  raising  the  question  whether  the  cause  should  be  shown  at  the  time  of 
commitment,  or  not  until  the  return  of  the  habeas  corpus. ^^  The  debate 
that  followed  shows  that  the  members  were  not  even  agreed  as  to  the 
end  for  which  they  were  fighting.  Fleetwood  was  as  positive  that  the 
end  of  their  law  was  to  deliver  out  of  prison^^  as  were  Shervile-°  and 
Stroude^^  that  it  was  to  prevent  imprisonment. 

Behind  this  was  more  than  just  a  misunderstanding;  it  was  a  difference 
of  opinion  as  to  the  way  to  overcome  the  abuses.  If  a  good  habeas  corpus 
law  would  prevent  arbitrary  imprisonment,  why  miss  the  chance  of  gain- 
ing that  by  fighting  for  a  principle  which  was  so  bitterly  opposed  by  the 
King  and  Lords?  Why  contend,  in  other  words,  for  their  first  resolution 
if  all  they  needed  were  the  second  and  third?  The  debate  clearly  proved 
"that  the  subject  would  gain  no  practical  advantage  from  having  the  cause 
shown  to  the  jailor  at  the  time  of  commitment.  Coryton  had,  indeed,  claimed 
that  it  would  give  time  for  the  prisoner's  counsel  to  prepare  his  argu- 
ment and  so  have  it  ready  upon  a  habeas  corpus  i^^  but  Noy  answered  that 
the  jailor  was  not  bound  to  communicate  the  cause.^^  RoUe  thought  that 
he  would  gain  his  release  sooner.  If  committed  at  the  beginning  of  the 
long  vacation  he  woiild  have  a  long  wait  for  his  habeas  corpus,  but  if  the 
cause  was  expressed  upon  the  commitment  and  it  was  not  just  he  could 
bring  action  against  the  jailor  for  false  imprisonment.  Then,  warming 
up  to  his  subject,  he  showed  that  this  was  "a  better  remedy  than  a  habeas 
corpus  for  it  gives  costs  and  damages,  so  granting  this  we  undoe  all  the 
rest."^'*  Hobby  answered  that  this  would  not  help  him  to  his  liberty  an 
hour  sooner  for  he  could  have  his  habeas  corpus  out  of  Chancery  during 
vacation  time.^s  And  Whistler  pointed  out  that  the  jailor  is  only  re- 
sponsible as  to  whether  he  who  commits  has  power  to  do  so,  and  it  must 

»«G,  2:154.  >»G,  2:156.  "»  140  M,  verso. 

"H.  5324:8.  »  G,  2:155.  ^M,  139  verso. 

"H.  2313:131.     See  also  M.  137  verso;  N.  110;  G,  2:157.  ^^  H.  2313:131;  G,  2:158. 


THE   PETITION  OF  RIGHT  31 

be  conceded  that  the  Council  have  the  power .^^  After  this  discussion  Pym's 
question  seems  perfectly  justifiable:  "If  the  Gaylor  can  neyther  say  or 
knowe  any  thinge,  why  should  wee  streive  for  that  that  is  unnecessary  P"^^ 

But  though  showing  cause  at  the  time  of  commitment  woiild  not  re- 
lease the  party  it  might  still  have  a  practical  advantage.  Grimston,^^ 
Eliot,^^  and  Coke^°  spoke  not  only  of  their  own  actual  experience  but  of 
that  of  many  others  when  they  showed  that  after  their  commitment  their 
rooms  were  searched  and  out  of  evidence  then  found,  a  cause  was  trumped 
up.  Digges  answered  that  the  search  could  have  been  made  as  well  before 
as  after  their  commitment.^'  Eliot  spoke  also  of  secondary  causes  being 
given.  For  example,  the  men  who  were  imprisoned  in  the  Fleet  for  deny- 
ing the  loans,  after  being  called  before  the  Council  Board  were  sent  back 
to  prison  and  it  was  "cast  out  it  is  for  contempts  and  ill  carriage. "^^  Tq 
this  Wentworth  answered  that  if  they  made  such  a  law  it  would  be  evaded 
by  giving  false  causes. ^^ 

The  most  serious  objection,  the  one  that  clearly  divided  the  oppor- 
tunists from  the  reformers,  lay  in  the  fact  that  there  was  no  way  of  en- 
forcing the  first  resolution.  "There  wants  a  penalty,"  said  Seymour.^^ 
"This  bill  without  penalty  will  be  to  take  a  shadow  and  leave  the  sub- 
tance."^^  The  offenders  were  the  privy  counsellors.  Any  penalty  the 
Commons  could  attach  the  King  could  pardon.  Why  run  the  risk  of 
breaking  Parliament  in  order  to  pass  an  act  that  could  not  be  enforced  ?^^ 
This  was  why  the  opportunists  proposed  alternative  measures  that  woiild 
catch  the  men  lower  down.  Seymour's  proposal  was  against  the  deputy 
lieutenants  and  justices  of  the  peace  who  for  fear  of  losing  their  places 
carried  out  the  commands  of  the  Council.^^  But  the  most  popular  plan 
was  to  depend  upon  a  habeas  corpus  law  and  hold  the  judges  responsible.  - 
This  was  advocated  by  Noy,^^  Pym,^^  and  Wentworth.'*'' 

26  G.  2:  164.  2'  B.  118.  28  if,id.;  G,  2:157.      2»  M,  137   verso. 

3»M.  138.  3' N,  112;  G,  2:160;  H,  2313:132.  '2  G,  2:159.  s' G.  180. 

3<  M,  141.  35  H,  5324:8.  38  Noy.  M,  139  j;e;-5o-140.  37  h,  5324:8;  M.  141. 

38  TvJoy  brought  it  up  first,  having  proposed  it  on  the  26  (M,  12%  ver 30-129),  and  repeated  his  proposal 
again  on  the  30  (M,  139  verso).  Gardiner  magnifies  Wentworth's  part  too  much  (6:266),  apparently 
•making  him  alone  responsible  for  the  modified  bill  as  he  formulated  it  on  May  1. 

39  B,  118;  G,  2:155.  "  G,  2:179;  M,  141  verso-1^2;  N,  121-122. 

Gardmer  discusses  at  some  length  the  plan  of  Wentworth  for  a  habeas  corpus  act.  His  interpretation 
of  the  plan  is  that  the  act  would  leave  to  the  judges  "the  ultimate  decision  of  the  legality  of  the  committal" 
(6:267).  The  debate  in  the  House  does  not  bear  out  this  conclusion.  It  was  not  the  intention  of  the 
framers  of  this  plan  to  leave  the  decision  to  the  judges,  but  to  determine  the  question  of  legality  by  the 
act  itself.  The  weakness  of  their  position  lay  in  the  fact  that  their  proposed  act  did  not  determine  it. 
This  was  clearly  pointed  out  by  Mason  in  a  long  speech  in  which  he  showed  the  results  which  would  accrue 
from  a  habeas  corpus  law  based  on  the  second  and  third  resolutions.  Without  the  first  the  third  admitted 
the  right  to  commit  without  cause.  The  second  obliged  the  court  to  release  such  a  party,  but  there  was 
nothing  to  prevent  his  being  arrested  again  on  the  same  kind  of  warrant  (O.P.H.  8:89-94).  The  failure 
of  this  proposal  for  a  habeas  corpus  law  to  gain  support  in  the  House  was  due  to  this  very  fact  that  it  did 
not  determine  the  real  point  at  issue.  Because  he  missed  this  point  Gardmer  failed  to  understand  the 
real  cause  for  the  split  between  the  two  parties  in  the  lower  House. 


32  FRANCES  HELEN  RELF 

Not  that  the  opportunists  denied  the  principle  in  the  first  resolution. 
"Noe  King,  no  counsell,  no  judge,  by  Gods  law  or  mans  can  lay  imprison- 
ment ...  at  his  pleasure,"  said  Pym.  The  motive  of  the  punishment 
must  be  "in  the  party  himself  .^'^^  Noy  was  as  positive  that  according  to  the 
law  "the  cause  ought  to  be  expressed. "^^  Wentworth  agreed  "the  resolu- 
tions are  according  to  lawe."^^  Banks,  who  was  as  great  an  opportunist  as 
any  was  even  more  explicit.  "The  cause  ought  to  be  expressed  uppon  the 
commitment  as  well  as  uppon  the  retume  .  .  .  This  question  is  the 
hinges  of  this  busines  and  will  tume  the  whole.  I  would  have  it  declared 
that  to  commit  anie  without  expressinge  the  cause  is  against  the  lawe."^ 
Noy,  too,  would  declare  but  not  enact  it.^^ 

Nothing  shows  more  clearly  the  motives  which  prompted  the  reformers 
than  their  answers  to  the  opportunists.  Shervile  gave  two  reasons  when, 
on  May  1,  he  answered  the  objections.  "Some  object  what  good  shall 
wee  gett  if  it  bee  enacted  onely,  onely  that  the  lawe  is  thus,"  that  is  know- 
ing that  it  will  not  be  kept.  "I  answer  it  is  comfort  to  mee  in  my  imprison- 
ment that  it  is  against  the  lawe."  When  these  men  went  to  prison  it  was 
not  the  physical  discomfort  or  the  loss  of  freedom  that  they  minded  most, 
but  the  reproach  and  disgrace.  Shervile  spoke  of  it  as  "a  miserable  calamity 
and  prejudice,  a  civil  death,  brings  terrors,  affrightness,  forsakings  of 
friends."*®  "A  man  suffers  in  his  reputation,"  said  Eliot.*^  And  Sir 
Edward  voiced  the  same  thought  when  he  said,  "this  commitment  is 
fearfull,  all  mens  mouths  are  open  against  the  partie."*^  They  surely 
needed  the  comfort  of  knowing  that  in  submitting  to  such  ignominy  they 
were  upholding  the  law.  But  this  was  a  small  and  selfish  reason  as  com- 
pared with  their  other.  Shervile  showed  that,  since  the  question  had  been 
raised,  to  abandon  it  was  in  reality  to  declare  against  it.  "It  will  be 
urged  against  us,  if  any  be  so  committed,  that  indeed  it  was  agitated 
in  the  house,  but  that  it  stuck  with  the  Lords  and  wee  could  not  gett  it 
passe.  .  .  .  [We]  may  say  wee  hope  no  man  shall  more  be  so  committed 
but  can  give  no  assurance  of  it  and  that  ourselves  shall  have  waved  our 
common  right,  and  not  have  maintained  what  wee  have  declared  to  be 
law."*^  Mason  was  even  more  explicit.  "Altho'  the  King  or  Council,  as 
it  hath  been  objected,  by  might  may  commit  us  without  cause,  notwith- 
standing any  laws  we  can  make;  yet  I  am  sure,  without  such  an  Act  of  Par- 
liament, such  commitment  can  have  no  legal  colour;  and  I  would  be  loth 
we  should  make  a  law  to  endanger  ourselves. "^°  By  "such  an  Act"  he 
refers  to  the  habeas  corpus  act  based  on  their  second  and  third  resolutions. 
Such  an  act,  he  maintained,  by  implying  that  the  cause  need  not  be  shown 
until  the  return  of  the  writ  of  habeas  corpus,  would  be  "a  general  or  per- 

«'  G.  2:155.  *2  M,  139  verso.  "  M,  141  verso.  "  M,  137  verso. 

«  M,  139  verso.  *»  M,  140  verso  and  H,  5324:6  combined.  •'  H,  2313:132. 

"M,  138.  "H.  5324:7.  »»  Q.P.H.  8:94. 


THE   PETITION   OF  RIGHT  Zi 

petual  dispensation"  of  Magna  Carta.^^     They  must  stick  to  their  first 
resolution  or  abandon  all. 

The  opportunists  were  going  around  in  a  circle.  Let  it  "be  enacted," 
said  Wentworth,  that  we  shall  be  bailed  *'if  habeas  corpus  be  brought  and 
no  sufficient  cause. "^^  But  who  was  to  define  "no  sufficient  cause"  ?  Either 
it  must  be  done  by  law  or  left  to  the  judges.  The  judges  had  been  given 
the  opportunity  to  decide  in  the  "late  habeas  corpus  case";  but,  as  Sir 
Edward  Coke  pointed  out,  they  "have  not  disclaimed  it,  that  they  could 
not  be  bailed  who  were  so  committed,  only  explained  themselves  that  they 
gave  no  such  judgment. "^^  But  Sir  Edward  was  told  that  they  would 
not  dare  to  do  that  after  Magna  Carta  and  the  explanatory  statutes  had 
been  confirmed.  This  was  touching  a  weak  spot,  for  all  along  it  had  been 
asserted  that  the  resolutions  contained  nothing  new.  This  was  the  basis  on 
which  Wilde,  Digges,  Hakewill,  Banks,  and  Wentworth  argued  that  it  was 
not  necessary  to  insert  their  resolutions  in  the  bill  at  all,  that  the  reenact- 
ing  of  the  old  laws  was  all  that  was  necessary.  Pushed  into  a  comer  Coke 
and  Eliot  admitted  that  the  recital  of  the  old  law  was  not  sufficient.  "I 
conceive  nothing  is  new,"  said  Eliot,  "all  that  wee  seeke  is  but  the  explana- 
tion of  the  lawe,  but  the  old  put  in  fuller  sense.  "^*  Sir  Edward  admitted 
even  more.  Speaking  of  their  first  resolution  he  said,  "the  Acts  of  Parlia- 
ment include  theis  questions  in  substance  but  it  is  only  implied. "^^  They 
must  have  an  explanation  of  it  enacted  in  the  body  of  the  bill  "else  Mr.  At- 
torney will  come  with  a  relief  and  wipe  all  out  with  a  distinction."^^  Until 
there  was  a  law  stating  in  no  equivocal  terms  that  commitment  by  the  King 
without  cause  shown  was  against  the  law,  until  there  was  such  a  law  how  | 
could  they  be  at  all  sure  that  the  judges  would  bail?  The  reformers  \ 
rightly  maintained  that  it  was  they  that  held  to  the  substance  and  the^  \ 
others  to  the  shadow. 

In  this  three  days'  debate  the  position  of  the  reformers  is  clearly  defined.'"*' 
The  cause  of  the  break  between  Wentworth  and  Sir  Edward  is  made  evi- 
dent. Wentworth  had  stood  for  a  law  by  which  the  offenders  could  be 
punished.  Though  on  the  surface  this  seemed  the  practical  thing,  it  was 
proved  to  be  quite  the  reverse,  for  no  law  they  coiild  make  would  touch 
the  real  offenders.  The  really  practical  thing  was  a  declaratory  law.^- 
This  in  its  nature  was  like  a  judicial  decision;  not  a  law  to  be  put  into 
operation  against  individuals,  but  a  law  which  the  judges  must  recognize 
in  making  decisions."     In  this  kind  of  a  law  the  explicit  explanation  was 

"/6»"i.,  90.  52  N,  121-122.  63  H,  2313:133.  "  M,  139.  e6  M,  138.  ^  Q,  2:163. 

5'  Gardiner  missed  entirely  the  point  of  difference  between  Wentworth  and  Coke.  To  him  one  was 
the  moderate  man  the  other  the  extreme  (6:268-271).  From  this  it  followed  that  he  looked  upon  the  change 
of  policy  in  the  same  light.  "The  Commons,  if  they  were  to  carry  their  point  at  all,  must  set  their  teeth 
hard  and  declare  war  to  the  end  against  their  sovereign"  (Ibid).  "After  Wentworth's  failure  it  was  not 
likely  that  the  House  would  again  ask  for  anything  short  of  the  extreme  measure  of  its  claims"  (Ibid.,  272). 
With  this  idea  firmly  fixed  in  his  mind,  it  would  be  hopeless  to  expect  Gardiner  to  have  any  realization 
of  the  real  natuie  of  the  Petition  of  Right. 


34  FRANCES  HELEN  RELF 

the  important  thing.  That  explanation  was  contained  in  their  first  reso- 
lution, and  to  that  resolution  the  reformers  were  determined  to  hold  fast. 
This  marks  the  first  step  in  the  change  from  the  bill  of  April  29,  to  the 
Petition  of  Right.  The  change  was  due  entirely  to  debate  within  the 
House.  The  next  change  was  to  come  from  pressure  brought  to  bear  by 
the  King. 

On  the  next  few  days,  messages  from  the  King  followed  each  other  in 
quick  succession.  The  effect  was  to  convince  the  Commons,  more  than 
ever,  that  an  explanation  was  essential.  So  essential  did  they  consider  it 
that  they  willingly  abandoned  going  by  bill  from  which  all  explanation 
wotdd  have  been  excluded,  and  went  by  a  more  uncertain  way.  The 
King  interrupted  the  debate  on  May  1  by  a  message  demanding  to  know 
whether  they  would  abide  by  his  promise  or  not.^*  When  Rich  asked  if 
this  meant  they  should  not  proceed  by  bill,^^  Secretary  Coke  answered, 
if  it  be  by  a  bill  that  contains  noe  enlargement  of  our  ancient  right  .  .  . 
it  will  pass."^"  The  next  day  there  was  another  message  from  the  King  re- 
newing his  promise  but  asserting  that  he  would  not  have  the  laws  enlarged 
"by  newe  explanacions,  interpretacions,  exposicions,  or  addicions  in  any 
sorte,  which  hee  telleth  us  hee  will  not  give  way  unto  or  endure. "^^  In 
answer  to  this  message  the  Commons  sent  a  conciliatory  remonstrance  to 
.  the  King,  the  thought  and  wording  of  which  came  from  Wentworth.^^ 
This  proves  that  by  this  time  even  the  opportunists  were  convinced  of  the 
necessity  of  explanation.  They  maintained  in  the  remonstrance  that  they 
had  not  "the  least  thought  of  straining  or  enlarging  the  former  laws;" 
that  they  only  wished  to  make  necessary  explanation  and  provision  for 
execution.^3  The  King's  answer  came  back  the  same  day,  that  any  ex- 
planation would  "hazard  an  Incroachment."^^ 

These  messages  of  the  King  positively  prohibited  any  bill  which  should 
be  more  than  a  bare  confirmation.  This  was  the  reason  that  the  bill  was 
abandoned.  Of  what  use  was  a  bare  confirmation?  Sir  Roger  North  put 
the  situation  in  a  very  vivid  way.  "They  will  aske  us  when  wee  come 
home,"  he  said,  "what  relief e  wee  have  brought  them,  wee  tell  them  wee 
have  confirmed  the  old  statutes,  they  aske  us  when  they  were  repealed. "^^ 
The  only  question  in  regard  to  the  laws  was  the  question  of  their  interpre- 
tation; lex  terrae  must  be  explained.^^  The  remonstrance  proves  that  even 
the  opportunists  were  convinced  of  that.  But  to  clear  up  any  misgivings 
that  might  remain  the  lawyers  were  called  upon  to  explain  whether  any 

»»O.P.H.  8:94-95.  "H.  5324:11.  "^  Ibtd.  613.129.     See  also  O.P.H.  8:98-99. 

•*  He  "delivered  it  up  to  the  Chair  having  penned  it  and  enlarged  it  as  he  sat."     B,  127  verso. 

"  O.P.H.  8:102.  "  Ibid.  »5  B.  140  verso. 

>»  North.  "A  confirmation  of  Magna  Carta  and  the  six  other  statutes  will  not  give  our  country 
satisfaction,  for  the  riddle  of  lex  terre  is  not  yet  unfolded."  N,  142. 

In  summing  up  the  arguments  at  the  conference  before  the  Lords,  Heath  had  said:  "How  this 
«i  terrae  is  to  be  expounded,  is  the  main  apple  of  contention."  L.J.  3:763. 


THE  PETITION  OF  RIGHT  35 

possible  good  could  come  from  a  bare  confirmation."  The  lawyer  who 
answered  was  Littleton,  the  recognized  authority  on  statute  law.  He  de- 
clared that  not  only  wordd  they  gain  nothing  but  they  would  lose  much. 
To  agree  to  a  general  confirmation  was,  in  the  eyes  of  the  public,  tacitly 
to  recede  from  their  resolutions.^^  More  than  that  he  declared  that  "a 
gentleman  in  the  country  that  knowes  not  our  Resolutions  will  never  be 
able  to  extract  out  of  these  lawes  those  points  wee  have  here  resolved. "^^ 
Under  no  circumstances  would  he  accept  a  bare  confirmation. '^o  This  was 
the  general  feeling.  Rather  than  give  up  the  explanation  the  Commons, 
abandoned  going  by  bill,  and  sought  for  some  other  means  of  getting  their 
explanation  on  record.     This  they  found  in  a  petition  of  right. 

"  N,  141;  G,  3:60;  H.  5324:23;  B.  140. 

68  "It  will  weaken  the  oppinion  of  us  abroade.     Will  not  the  world  thinke  wee  tacitly  desert  our 
former  grounds?"  B,  140. 

"  N,  141-142.  '»  For  this  speech  see  also  G.  3:60-61;  H.  5324:23;  M.  150  verso. 


CHAPTER  V 
BY  PETITION 

When,  on  May  6,  the  Commons  had  found  themselves  forced  to 
rehnquish  their  bill  for  a  declaratory  law,  the  idea  of  abiding  b}^  the  King's 
promise  began  to  receive  more  favor.  The  objections  to  the  King's  offer, 
as  contained  in  his  message,  had  been  two;  as  worded  it  was  too  general 
■•^CK^  and  vague  to  be  any  help  against  the  specific  grievances  of  the  time,  and 
secondly  in  the  form  of  a  message  to  the  Commons  there  was  nothing  to 
insure  its  permanency.  Gradually  the  feeling  spread  that  if  these  defects 
could  be  overcome  they  would  be  willing  to  abide  by  the  King's  word. 
It  was  at  this  point  that  it  was  proposed  that  they  proceed  by  a  petition 
of  right. 

In  order  to  understand  just  what  this  proposal  meant  it  is  necessary 
to  keep  clearly  in  mind  the  differentiation  in  petitions  which  had  taken 
place  as  Parliament  developed  as  a  legislative  body.  One  differentiation 
was  due  to  the  change  from  petition  to  bill.  Certain  general,  important 
petitions,  which  the  King  had  assented  to,  were  afterwards  drawn  up  in 
the  form  of  statutes.  To  obviate  the  danger  of  changes  in  the  wording. 
Parliament  began  introducing  these  in  their  final  form,  that  is  as  bills 
instead  of  petitions.  This  made  the  difference  between  public  and  pri- 
vate bills.  For  though  the  lesser  demands  still  kept  the  old  form  of  peti- 
tion they  adopted  the  new  procedure  of  three  readings  in  each  House  and 
the  King's  assent  in  stereotyped  form  at  the  end  of  the  Session.  But  this 
new  procedure  was  given  only  to  a  certain  kind  of  lesser  demand,  that  is 
to  those  petitions  which  asked  for  legislative  remedy — petitions  of  grace. 
Petitions  of  right,  those  asking  for  judicial  remedy,  were  sent  directly  to 
the  courts  having  jurisdiction.  Such  petitions  of  right,  coming  from  in- 
dividuals, were  very  common;  but  a  petition  for  judicial  remedy  coming 
from  both  Houses  of  Parliament  was  very  unusual.  Only  from  what  the 
Commons  themselves  said  do  we  know  what  they  meant  by  having  Parlia- 
ment proceed  by  a  petition  of  right.  According  to  their  statements,  for 
the  Houses  of  Parliament  to  present  a  petition  of  right  to  the  King  was 
for  them  to  act  in  their  judicial  capacity  as  the  High  Court  of  Parliament, 
was  for  them  in  that  capacity  to  declare  what  the  law  was.     The  King's 

.    assent  would  have  the  same  effect  as  his  assent  to  a  private  petition  of  right ; 

it  would  assure  its  enforcement  in  the  courts.  It  would  confirm  the  dec- 
laration of  the  Houses;  it  would  make  it  an  interpretation  of  the  law  on 
which  the  judges  must  act.  A  petition  of  right  was  the  only  remedy  when 
there  was  a  conflict  between  the  subject's  right  and  the  King's  preroga- 
tive.    This  is  the  essence  of  the  private  petition  which  still  begins  a  civil 

36 


THE  PETITION   OF  RIGHT  37 

suit  by  the  subject  against  the  King.  The  character  of  the  public  peti- 
tion was  essentially  the  same. 

In  considering  the  Petition  of  Right,  there  are  two  lines  of  thought 
which  must  be  followed.  They  are,  indeed,  the  two  objections  which  had 
been  made' to  the  King's  promise  as  contained  in  his  message;  they  were 
also  the  questions  which  were  asked  before  the  Commons  woiild  consent 
to  proceed  in  this  unusual  way.  The  first  question  was  whether  the  peti- 
tion could  contain  the  explanation  as  found  in  their  resolutions  of  April  1.^ 
The  second  was  whether  the  petition  and  answer  would  be  binding  on  the 
judges.  In  the  discussion  which  follows  these  two  questions  must  be  kept 
clearly  in  mind,  and  distinct  from  each  other.  The  first  has  to  do  with 
the  content  of  the  Petition;  the  second  with  the  procedure,  for  it  was  the 
procedure  which  would  determine  whether  in  the  end  they  had  an  act  or 
only  a  petition  and  answer.  The  first  work  devolving  upon  the  leaders, 
who  advocated  the  change  from  bill  to  petition,  was  to  convince  the  mem- 
bers of  the  efficacy  of  the  new  plan.  The  discussions  which  took  place 
in  the  House  before  the  Petition  was  framed,  and  again  after  it  was  ac- 
cepted by  the  Lords  and  the  time  for  the  formal  procedure  had  come,  make 
it  very  clear  what  the  leaders  hoped  to  accomplish  by  their  Petition. 

In  the  form  of  its  content  the  Petition  was  to  be  a  compromise  be- 
tween the  declaratory  bill  and  the  King's  message,  more  concihatory  on 
the  one  hand,  more  definite  on  the  other.  Even  when  they  still  expected 
to  go  by  bill,  the  Commons  showed  a  willingness  to  put  the  bill  in  the 
form  of  a  promise.  Many  of  the  Commons  had  been  impressed  by  the 
difference  between  the  wording  of  the  Lords'  resolutions  and  their  own. 
Instead  of  their  "Resolved  .  .  .  that  the  free  man  ought  to  be,"  the  Lords' 
resolutions  read  "That  his  Majesty  would  be  pleased  graciously  to  declare." 
So  when  the  bill  was  presented  in  the  words  of  their  resolutions  there  was  a 
protest.  "I  like  not,"  said  Digges,  "to  put  it  in  a  Law  that  the  King  ought 
not:  never  act  spoke  in  such  language."^  Shervile  answered  Digges  that  it 
was  the  language  of  Magna  Carta:  "Wee  make  lawe  accordinge  to  the 
language  of  the  lawe."^  When  the  Lords'  resolutions  cam^e  down.  Sir 
Edward  Coke  had  objected  to  the  form  because  it  implied  an  act  of  grace 
"whereas  it  is  of  right, "^  but  by  May  2,  he  was  willing  to  make  some  con- 
cession. He  was  willing  then  that  the  bill  shoiild  be  worded  as  coming 
from  the  King;  "We  will  and  grant  for  us  and  our  successors  by  consent, 
etc."^  And  when  Sir  Edward  gave  up  on  any  point  the  matter  was  set- 
tled. 

It  was  during  the  debate  over  their  remonstrance  presented  by  the 
Commons  to  the  King  on  May  5,  that  the  idea  definitely  took  shape 
that  there  was  too  much  dealing  in  generalities,  that  they  needed  to  be 

1  For  the  resolutions  see  Appendix  A.        2  G,  2:175.         ^U,  MO  verso.         ^H.  2313:121.       5  G,  3:19 


38  FRANCES  HELEN  RELF 

more  explicit.  On  May  1,  Sir  Edward  Coke  had  pleaded  with  the  Com- 
mons to  "deale  clearely"  with  the  King.^  After  the  King's  message  on  the 
following  day  this  need  was  felt  to  be  even  more  imperative.  This  time  the 
plea  came  from  the  King's  supporters.  They  insisted  that  a  general  answer 
would  give  no  satisfaction  to  the  King,  that  the  form  of  their  bill  would 
best  show  their  answer.''  All  seemed  willing  to  be  more  definite.  Though 
the  Commons  insisted  on  sending  the  remonstrance  they  were  willing  to 
declare  in  it  whether  their  resolutions  were  to  be  included  or  not.  Men 
as  far  apart  as  Littleton^  and  Secretary  Coke^  were  here  in  agreement. 
But  Sir  Edward  pointed  out  that  it  was  against  parliamentary  procedure 
to  tell  the  King  what  they  w^ere  going  to  do  in  the  future,  that  they  could 
only  promise  not  to  encroach  upon  the  prerogative. ^°  That  to  Secretary 
Coke  was  to  "answer  nothing  but  riddles. "^^  The  idea  had  taken  root 
that  only  by  being  explicit  would  they  be  able  to  come  to  any  understand- 
ing with  the  King. 

The  natural  corollary  to  this  demand  was  that  the  King  be  more  ex- 
plicit with  them.  He  said  he  was  willing  to  nile  according  to  the  law. 
Would  he  say  wherein  the  law  had  been  violated?  This  was  but  another 
way  to  gain  their  demand  for  an  explanation  of  the  law.  The  reason  that 
an  explanation  was  necessary  was  because  the  law  had  been  violated;^- 
then  in  the  admission  in  particulars  lay  the  explanation.  "I  w^ould  be  glad 
to  hear  the  King  say,"  said  Rich,  "hee  may  not  by  lawe  billet  soldiers,  or 
lay  loanes."^^  Pym  spoke  to  the  same  effect:  "Wee  complaine  of  our  un- 
just imprisonments  uppon  loanes,  I  heare  not  one  say  wee  shall  have  noe 
more,  or  that  matter  of  state  shall  bee  noe  more  pretended  when  there  is 
none;  for  billeting  of  soldiers,  is  it  said  that  it  is  against  the  lawe?"^^  He 
thought  that  the  lords  who  put  the  soldiers  upon  them  really  believed 
that  they  were  within  the  law.  Grimston  reminded  them  that  they  had 
had  even  a  better  example  than  that  of  the  misinterpretation  of  the  law. 
He  called  to  their  minds  Secretary  Coke's  assertion  on  May  1,  that  he 
would  continue  to  commit  without  showing  cause  to  judge  or  jailor  because 
"others  in  the  same  place  have  committed  freely  without  complaint  of 
the  subject. "''  This  was  plain  speaking  which  Sir  Edward  had  endorsed 
by  saying,  "Now  is  the  ax  laid  to  the  root  of  the  tree."^^  Pym  and  Rich 
had  declared  that  with  this  kind  of  explanation  they  would  be  willing  to 

•  M,  144  verso. 

'  May.  M.  146  verso;  B,  132;  H,  5324:17;  G.  3:33;  N,  133.  Secretary  Coke.  M,  147;  B,132  verso; 
G,  3:34-35. 

»  M,  147  verso.      •  M,  147  verso;  B,  134;  He  seconded  Littleton's  motion.  ">  Ibid.;  N,  135. 

"  M,  147  verso.     >'  Wentworth:     "A  public  violation  requires  a  public  satisfaction."     B,  126  verso. 

w  M.  151.  »*  M.  151  verso. 

«  G,  2:183.  For  Grimston's  speech  see  M,  152;  G,  3:68;  B,  142.  He  concluded  by  saying  if  Coke 
did  as  he  said  "I  look  ere  longe  to  bee  in  the  Fleete  agayne  "     B,  142. 

M  M,  142  verso. 


THE  PETITION  OF  RIGHT  39 

rely  upon  the  King's  word.  Secretary  Coke  was  quick  to  take  advantage 
of  the  opening  for  compromise.  He  was  confident  that  if  they  petitioned 
the  King  he  would  declare  that  imprisonment  for  loans  was  unlawful.^' 
Sir  Edward  Coke  immediately  proposed  that  they  proceed  by  a  petition 
of  right. 

As  far  as  its  content  was  concerned  the  Petition  of  Right  would  differ 
from  the  declaratory  law  they  had  desired  only  in  the  substitution  of 
particular  grievances  for  the  general  statements  contained  in  their  resolu- 
tions. The  Petition  of  Right  was  no  more  judicial  in  its  nature  than  the 
declaratory  law.  They  had  a  common  beginning.  In  his  introduction  to 
the  Records  of  Parliament  Holden  at  Westminster  ijoj,^^  Maitland  makes  the 
statement  that  at  that  time  there  was  no  hard  line  drawn  "between  the 
true  petition  of  right  which  shall  be  answered  by  a  Fiat  justitia  and  all 
other  petitions. "^^  According  to  Professor  Mcllwain  the  idea  of  "making 
law"  as  we  understand  it  was  entirely  foreign  to  17th  century  thought.^* 
"In  mediaeval  England,"  he  states  again,  "legislation  in  its  proper  sense 
was  all  but  unknown."  He  quotes  Mr.  Jenks^^  for  the  expressions  that, 
they  are  "not  enactments,  but  records,"  that  they  are  "the  law  of  a 
court. "-^  Professor  Mcllwain  maintains  that  in  1628  this  idea  remained;: 
that  Parliament  still  seemed  primarily  a  "law-declaring  machine;"  that 
its  function  was  still  in  large  part  "merely  the  enforcing  and  applying"  of 
the  fundamental  law.^^  The  Commons  had  already  decided,  when  they 
still  expected  to  go  by  bill,  that  they  desired  not  a  law  with  a  penalty  but 
a  declaratory  law.  On  the  side  of  content  that  was  a  much  greater  change 
than  the  one  now  proposed.  But  the  question  whether  the  Petition  could 
contain  their  explanation  still  remained.  It  had  really  split  itself  into  twdl 
First,  whether  in  this  form  the  King  would  allow  the  explanation;  andj 
secondly,  whether  particulars  could  contain  the  substance  of  their  reso-| 
lutions  of  April  1. 

The  first  question  was  raised  by  Eliot.  To  go  about  explanations,. 
he  said,  "is  to  laboure  in  vayne  for  wee  are  forbidden."^''  But  the  rest 
seemed  confident  that  the  King  would  do  what  Secretary  Coke  had  promised,, 
that  he  would  declare  particular  grievances  illegal.  It  was,  indeed,  their 
only  hope.  "His  Majesty,"  explained  Rich,  "said  hee  would  have  noe 
paraphrase  or  addicion,  but  in  this  way  we  may  prefer  it."^^  This  answered 
the  first  question,  and  it  showed  also,  what  can  not  be  emphasized  too 
much,  that  petition  was  the  only  way  left  by  which  the  Commons  could 
place  their  explanation  on  record.  That  it  was  not  the  best  way,  even' 
on  the  side  of  content,  is  to  be  seen  from  the  discussion  of  the  second  point. 

17  M,  152;  B.  U2-verso;  G.  3:70.  •«  Rolls  Series.  i'  p.  68. 

so  The  High  Court  of  Parliament  (1910),  p.  46.  21  Law  and  Politics  in  the  Middle  Ages. 

M  The  High  Court  of  Parliament,  42.  43.  ^  Ibid..  110.  "  B,  142  verso. 

26  M,  153. 


40  FRANCES  HELEN  RELF 

*'Lct  the  substance  of  our  resolutions  bee  putt  into  the  peticion  and  I 
doubt  not  of  a  fayre  answere,"  said  Littleton. ^^  But  could  the  substance 
of  their  resolutions  be  put  into  the  Petition?  Was  it  possible  for  the  nar- 
ratives of  particular  grievances,  with  the  prayer  for  remedy,  to  cover  the 
sweeping  statements  contained  in  their  resolutions?  Later  on  the  judges 
were  to  maintain  that  they  did  not.  At  this  time  the  lawyers  must  have 
kno\\ni  what  the  interpretation  would  be.  To  go  by  particulars  was  to 
weaken  their  position.  It  was  a  compromise  for  it  left  loopholes  through 
which  other,  perhaps  even  more  obnoxious,  grievances  might  creep  in.^^ 

The  second  objection  made  by  the  Commons  to  the  King's  promise 
had  been  that  they  could  not  depend  on  it.  The  Commons  found  more 
than  one  polite  way  of  saying  this.  "Were  the  King  immortal,"  said  Noy, 
"I  should  be  content  with  his  Majesties  word,  but  who  knowes  the  dis- 
position of  the  next  succeeding  King,  lett  us  therefore  pass  a  law  for  pos- 
terity."2s  Banks,^^  Wilde,^^  Phelips,3i  ^nd  Wentworth^^  all  talked  glibly 
about  posterity.  Scudamore  answered  them  that  if  it  was  only  for  pos- 
terity they  could  not  justify  their  act,  if  the  need  arose  "let  posterity  make 
a  law  for  it."^'  Some  were  for  bill  instead  of  the  promise  because  the 
people  would  give  more  readily;  promises  would  not  satisfy  them.^"*  This 
was  only  transferring  their  own  doubts  to  their  constituents.  Coryton, 
alone,  was  willing  to  sa}'-  what  the  others  thought,  that  the  King's  prom- 
ise could  not  be  relied  upon.  He  said  it  not  once  but  three  times,  and 
his  proof  was  that  though  the  King  had  answered  their  petition  against 
billeting,  the  abuse  continued.^^ 

To  go  by  bill  was  the  regular  parliamentary  way.  This  was  pointed 
out  by  more  than  one.^^  Sir  Edward  Coke  said  the  final  word  on  this  point 
in  the  often  quoted  words:  "For  the  King's  honour,  he  cannot  speak  but  by 
record. "^^  That  was  on  the  second  of  May;  on  the  sixth  when  the  tide 
was  turning  in  favor  of  going  by  promise  he  said  the  same  thing  but  even 
more  pointedly — "the  King  must  speak  by  record. "^^  In  the  same  speech 
he  proposed  the  middle  course  which  was  to  be  adopted.  "Let  us  go  in 
a  parliamentary  way:  for  anie  not  to  rclie  on  the  King  it  is  not  fitt.     Trust 

MB.  143. 

"  "The  way  of  petition  is  new,"  said  Coryton,  "and  I  know  not  how  we  may  name  all  particulars, 
•which  if  we  omit,  the  country  is  where  it  was."     B,  144. 

This  is  not  at  all  Gardiner's  view  of  the  change.  He  writes:  "Everything  to  which  he  [the  King] 
had  objected  in  the  Bill  re-appeared  in  the  petition  in  a  harder  and  more  obnoxious  form.  .  .  .  His 
acceptance  of  the  Bill  would  have  been  a  friendly  agreement  to  order  his  relations  with  the  nation  on  new 
terms.  His  acceptance  of  the  petition  would  be  a  humble  acknowledgment  of  error"  (6:275).  But  it 
was  easier  to  acknowledge  error  in  the  past,  than  to  bind  himself  by  "new  terms"  for  the  future. 

«  M,  139  verso.  '  »  M,  137  verso;  N,  110.  'o  G.  3:10;  B,  125  verso. 

M  B,  119  verso.  a'  N,  126;  M,  144  verso;  G,  3:16.  »'  H,  5324:7. 

"Rich.     B,  117  i/crio;  M,  137.     Seymour.     M.  144  verso;  G,  3:17;  B,  126  ser^o. 

K  April  29:  B,  117  verso;  G.  2:154-155.  May  2:  M,  144  verso;  G.  3:18.  May  6:  B,  140;  M,  150 
tjerso. 

^  Banks,  N,  110.     Hoskins,  M.  144  verso;  G,  3:17.  "  M,  145.  "  M,  152. 


THE   PETITION   OF  RIGHT  41 

in  him  is  all  the  confidence  wee  have  under  God;  he  is  Gods  lieutenant, 
trust  him  wee  must.  Was  it  ever  knowne  that  generall  words  were  a 
sufficient  sattisfaction  to  particular  grievances,  was  ever  a  verball  decla- 
racion  of  the  King  verbum  Regniumf  When  grievances  bee,  the  Parlia- 
ment is  to  redress  grievances  and  mischiefes  that  happen;  imprisonments 
are  our  grievances,  billetinge  of  soldiers,  unnecessarie  loanes  etc.  Did  ever 
Parliament  rely  on  messages;  they  ever  putt  upp  petitions  of  there  griev- 
ances and  the  King  ever  answered  them.  The  Kings  answer  is  verie  gra- 
cious, but  what  is  the  lawe  of  the  Relme;  that  is  the  question.  I  putt 
noe  diffidence  in  his  Majestic;  the  King  must  speake  by  record,  and  in 
particulars  not  in  generall.  Lett  us  have  a  conference  with  the  lords  and 
joyne  in  a  petition  of  right  to  the  King  for  our  particular  grievances.  .  .  . 
Messages  alone  never  came  into  a  Parliament.  Lett  us  putt  upp  our  peti- 
tion, not  that  I  distrust  the  Kinge,  but  because  wee  cannot  take  his  trust 
but  in  a  parliamentary  way."  This  middle  course  Coke  proposed  was  to 
take  the  place  of  relying  on  the  King's  message,  which  he  maintained  w^as 
contrary  to  parliamentary  procedure.^^ 

But  that  it  was  parliamentary  did  not  necessarily  imply  that  it  was 
legislative  procedure,  even  though  the  Lords  joined  with  them.  The  ob- 
ject in  having  the  Lords  join  with  them  was  that  thereby  the  petition 
might  become  a  record.  "The  petitions  which  move  from  this  House 
alone,"  said  Wentworth,  "are  not  put  upon  record,  but  the  Lords  joyning 
with  us  then  they  are."*"  That  their  petition  should  become  a  perma- 
nent record  was  the  thing,  perhaps,  of  greatest  importance  to  the  Com- 
mons. Hake  will  had  objected  to  the  change  to  petition  because, 
though  they  had  had  many  petitions  and  answers  of  late,  yet  "if  we 
look  after  them  they  are  not  to  be  foimd."*^  "It  will  be  a  record,"  said 
Sherland,  "when  it  hath  the  Kings  answer  and  entered  on  the  Roll  in  the 
Lords  House. "*2  It  will  be  a  record,  explained  Phelips,  "of  the  King, 
the  Lords,  and  us.  This  is  no  skrowle  to  bee  lost  at  Whitehall  or  else- 
where, but  a  record  fitt  for  the  Tower. "*^  It  would  be  a  record  of  what 
the  law  was.**  This  meant  that  in  its  capacity  as  the  highest  coiirt  of  the 
land  Parliament  would  make  a  judgment.  "The  lords  have  judges  with 
them  and  wee  that  have  been  in  the  same  school  agree  with  them  what 
the  law  is."*^  This  statement  from  Sir  Edward  Coke  shows  how  clearly 
he  conceived  that  Parliament  would  be  acting  in  its  judicial  capacity. 
"We  declare  the  lawes,"  said  Eliot,  "which  when  his  Majesty  shall  an- 
sweare,  it  will  give  sense*^  to  them."*''  "If  the  King  subscribe  his  hand," 
was  Pine's  explanation,  "he  subscribeth  that  all  therein  is  our  right. "*^ 

*'  M,  152.     "We  found  this  way  as  a  middle  course  that  is  free  from  all  the  King's  messages."     M, 
1201  verso.  "  H,  5324:28.  "  M,  153.  «G,  4:113.  «3B.  195. 

"  Pine.     M,  201  verso.  "  M,  202.  <«  Life  instead  of  sense  in  M  (200  verso). 

"B,  194,  verso.  'sq,  4:113. 


42  FRANCES  HELEN  RELF 

It  is  very  evident  that  Coke  had  proposed  a  much  stronger  way  than  rely- 
ing on  the  King's  message.  He  had  proposed  the  parHamentary  way  for 
redress  of  grievances.  But  the  Commons  were  not  wilUng  to  accept  thi& 
proposal  unless  it  was  to  have  the  force  of  a  law.  "If  petition  amount  to 
a  law  I  like  it,"  said  Coryton,  "if  not  I  am  against  itt,  for  we  shall  act 
nothinge."^^  Others,  though  they  consented  to  go  first  by  petition,  ex- 
pressed their  unwillingness  to  commit  themselves  as  definitely  giving  up 
procedure  by  bill  as  their  final  action.^"  The  question  was  left  in  the  air 
until  the  time  came  that  it  was  necessary  to  take  formal  action.  That. 
was  after  the  Lords  had  agreed  to  accept  the  content  of  the  Petition,  and 
it  was  necessars^  to  decide  definitely  whether  they  should  follow  the  pro- 
cedtu"e  of  a  bill  or  petition.  Then  on  May  27,  Coke,^^  Littleton,  Phelips^ 
Alford,^^  Sherland,^^  all  maintained  that  they  coiild  not  in  honor  change 
back  again  to  a  bill.  "If  we  go  not  by  petition,"  said  Littleton,  "we  for- 
sake our  promise  to  the  King,  endanger  the  work,  and  quite  depart  from 
the  Lords. "^*  "I  appeale  to  any  mans  harte,"  was  Phelips  way  of  putting 
it,  "whether  ever  it  were  intended  otherwise  then  as  a  petition. "^^  Ta 
this  Cor^^ton  answered:  "The  first  intent  of  this  House  was  by  way  of 
penalty  and  by  a  new  lawe;  we  fell  upon  a  petition,  but  we  all  proposed 
to  make  it  the  strongest  we  canne.  It  is  true  the  King  will  not  have  a  new 
lawe,  but  in  this  [we]  goe  not  beyond  the  lawe,  nor  have  wee  enlarged  our 
liberties,  and  this  is  confirmed  by  the  wisdome  of  the  whole  Kingdome  rep- 
resented by  the  lords  house  and  ours."^^  Coryton  would  have  opened 
up  the  whole  question  anew. 

This  debate  of  the  27  makes  clear  what  was  not  clear  from  any  evi- 
dence that  we  had  for  the  6,  that  those  who  advocated  the  petition 
then  knew  that  it  would  not  be  equivalent  to  a  law.  "We  went  to  this 
as  a  middle  way,"  said  both  Alford"  and  Coke.^^  Pine  was  even  more  posi- 
tive: "At  the  first  the  question  was  made  whether  the  way  of  petition  was 
a  binding  law  or  no;  and  it  was  then  declared  that  it  was  not,  and  then 
also  we  agreed  to  trust  the  Kings  word."^'  It  was  Pelham,  however,  who 
gave  the  real  reason  for  desiring  to  hold  the  members  in  line  for  the  peti- 
tion. "The  King  declared,"  he  reminded  the  House,  "that  if  wee  went  by 
Act  of  Parliament,  he  would  not  assent. "^°    After  their  long  struggle  with 

«  B,  144. 

••  Went  worth,  G,  3:74;  Digges,  H,  5324:28.  Eliot,  Ibid.,  27.  When  it  was  moved  to  put  it  to  the 
question  whether  to  go  by  petition,  Eliot  wished  to  amend  the  motion.  "Not  to  put  the  question  of  petition 
of  right  singly  to  the  question,  but  so  to  be  drawn  as  that  it,  and  the  King  s  answer,  be  putt  upon  record, 
entered  into  the  motion  of  both  houses,  and  after  to  be  putt  into  a  bill." 

"  "To  add  a  new  addition  and  join  to  a  law  again,  we  shall  not  do  like  ourselves."     M,  201  verso. 

•*  "The  lords  may  take  it  ill,  and  somebody  else  too."     G,  4:111. 

M  "We  all  promised  we  would  trust  the  Kings  word,  so  that  it  were  Verbum  Regum  to  a  petition  of 
right."     M.  201. 

M  B,  194  verso.  "  Ibid.  ««  M,  201.  "  M,  200  verso. 

"  Ibid.,  201  verso.  "  M,  201  verso.  «»  G,  4:113. 


THE  PETITION  OF  RIGHT  43 

the  Lords,  the  leaders  had  no  intention  of  courting  failure  by  allov/ing  the 
King  such  a  loophole. 

With  all  hope  gone  of  changing  the  Petition  back  to  a  bill,  the  doubt- 
ful members  raised  the  question  that  was  the  real  test — would  it  bind  the 
judges  ?^^  Pelham^2  ^nd  Pine«^  declared  that  though  they  coiild  not  take 
notice  of  the  Petition,  yet  they  would  be  bound  to  take  notice  of  the  laws 
of  which  it  was  an  explanation.  Sherland  went  further,  claiming  that  as  a 
record  the  judges  were  "bound  to  take  notice  of  it.""  And  Sir  Edward 
Coke  quoted  precedents  to  prove  that  "whatsoever  the  lords  house  and  this 
house  have  at  any  time  agreed  upon  no  judge  ever  went  against  it;  and 
when  the  judges  in  former  times  doubted  of  the  law  they  went  to  the  Parlia- 
ment, and  there  resolutions  were  given  to  which  they  were  bound."^^ 
Evidently  these  assertions  satisfied  at  least  a  majority  of  the  members, 
for  it  was  ordered  "that  this  Petition  of  Right  as  a  Petition  of  Right  be 
sent  up  to  the  Lords."''^ 

Both  in  content  and  procedure  the  Commons  had  determined  to  go 
hy  petition.  Yet  in  order  to  satisfy  certain  members  some  legislative  pro- 
cedure was  mixed  in.  It  is  due  to  this  mixed  procedure,  no  doubt,  that 
we  have  such  contradictory  statements  as  to  whether  or  not  the  Petition 
became  a  law.  Only  by  following  its  course  step  by  step  as  it  went  through 
the  Houses,  was  answered  by  the  King,  was  enrolled,  and  finally  as  it  was 
interpreted  by  the  judges,  is  it  possible  to  find  out  what  the  Petition  and 
Answer  are. 

61  Ball:    "If  it  be  as  a  petition.  I  would  know  if  the  judges  can  take  notice  of  it."    M,  201. 

62  G,  4:113.  63  M,  201  zierso.  64  g,  4:113. 

65  M,  201.  It  seems  probable  that  it  was  to  this  statement  by  Coke  that  the  King  made  reference 
in  his  speech  to  both  Houses  at  the  close  of  the  Session.  "I  command  you  all  that  are  here  to  take  notice 
■of  what  I  have  spoken  at  this  time,  to  be  the  true  intent  and  meaning  of  what  I  granted  you  in  your 
Petition;  but  especially  you,  my  Lords  the  Judges,  for  to  you  only,  under  me,  belongs  the  interpreta- 
tion of  the  laws;  for  none  of  the  Houses  of  Parliament,  either  joint  or  separate  (what  new  doctrine  soever 
«nay  be  raised),  have  any  power  either  to  make,  or  declare  a  law  without  my  consent."    O.P.H.  8:242. 

65  G,  4:115. 


CHAPTER  VI 
FORMAL  ACTION  ON  THE  PETITION  OF  RIGHT 

In  spite  of  a  considerable  opposition,  the  Commons  had  resolved  to 
go,  not  b}'  bill,  but  by  petition.  They  carried  out  this  resolution,  but  in 
doing  so  they  yielded  to  the  opposition  wherever  possible.  In  considering 
the  procedure,  therefore,  one  must  decide  at  each  step  not  only  whether 
it  was  legislative  (the  procedure  for  a  bill),  or  judicial  (the  procedure  for 
a  petition  of  right) ;  but  also  w^hether  it  was  a  step  which  definitely  com- 
mitted the  Commons  to  the  one  or  to  the  other.  The  question  is  further 
complicated  by  the  fact  that  this  was  a  very  imusual  kind  of  petition. 
Most  of  the  petitions  at  this  time  came  from  the  lower  House  only;^  or, 
if  from  both,  the  request  was  for  something  of  a  temporary  nature  as, 
for  example,  a  fast  day.  At  every  step,  therefore,  the  proper  mode  of 
proceeding  was  open  to  question.  For  this  reason  it  is  impossible  at  times 
to  say  any  more  than  that  that  particular  step  did  not  commit  the  Com- 
mons definitely  to  procedure  by  bill.  But  though  on  one  hand  the  novelty 
of  the  Petition  complicates  the  problem,  on  the  other  hand  it  helps  the 
student  to  solve  it.  Because  of  the  novelty,  each  step  was  thoroughly 
discussed  by  the  Commons  before  any  action  was  taken.  For  this  rea- 
son we  are  never  in  doubt  as  to  their  intention  or  as  to  the  exact  signifi- 
cance they  attached  to  their  action.  Another  complication  arises  from 
there  being  two  kinds  of  bills,  public  and  private.  One  would  naturally 
suppose  from  its  content,  that  if  enacted  the  Petition  became  a  public 
not  a  private  act.  Yet  it  will  be  seen  that  wherever  the  procedure  was  legis- 
lative it  was  the  procedure  for  a  private  and  not  a  public  bill.  It  is  much 
more  difficult  to  distinguish  between  a  private  bill  and  petition  than  be- 
tween a  public  bill  and  petition.  Here  again  we  can  often  be  guided  only 
by  the  discussion  in  the  lower  House.  There  is  little  to  be  found  else- 
where on  the  finer  points  of  procedure. 

In  taking  up  each  point  one  must  first  combat  the  traditional  view,  for 
in  nothing  pertaining  to  the  Petition  does  one  meet  with  so  many  mis- 
taken notions  as  in  regard  to  the  formal  action  taken  upon  it.  Perhaps 
no  notion  is  more  firmly  fixed  than  that  in  going  by  petition  the  Com- 
mons were  turning  back  to  the  legislative  procedure  of  the  earlier  time 
when  all  laws  were  initiated  by  petition  and  then  afterwards  put  into  the 
form  of  statutes.     That  was  what  Hakewill  thought  when  Coke  first  made 

>  In  1610  the  Commons  presented  a  petition  "touching  Restraint  of  Speech"  (C.J.  1:431).  A  diary 
for  that  Session  calls  it  "a  petition  de  droit"  {Parliamenlary  Debates  in  1610,  40).  It  is  of  essentially  the 
same  character  as  the  Petition  of  1628  being  the  result  of  conflict  between  a  right  of  Parliament  members 
and  the  King's  prerogative. 

44 


THE  PETITION  OF  RIGHT  45 

his  proposal.  Why,  he  asked,  should  they  go  back  to  a  method  which 
had  been  abandoned  two  hundred  years  before  F^  But  those  who,  on  May 
26,  advocated  giving  the  Petition  the  procedure  of  a  bill  were  not  hark- 
ing back  to  the  old  way  for  they  considered  that  going  by  bill  or  petition 
was  not  at  all  a  matter  of  form  but  only  one  of  procedure.  "Itt  is  in  the 
forme  of  a  bill,"  one  member  pointed  out.^  It  was  in  the  form  not  of  a 
public  but  of  a  private  bill.  Private  bills  have  always  kept  the  petition- 
ary form;*  in  1628  they  were  enrolled  as  petitions  concerning  private  par- 
ties containing  in  themselves  the  form  of  acts.^  As  far  as  its  form  was  con- 
cerned the  Petition  could  be  made  either  a  private  bill  or  a  petition  of  right. 
The  first  formal  action  taken  upon  the  Petition  was  the  three  readings 
in  the  House  of  Commons.  "Lett  the  petition,"  Rich  moved,  "have  the 
solemnitie  of  a  bill."^  He  was  seconded  by  Wentworth.  Without  seeming 
to  attach  any  particular  significance  to  the  procedure,  the  Petition  was 
read  twice  and  ordered  to  be  engrossed.''  It  was  not  until  the  next  day, 
after  the  third  reading,  when  they  were  ready  to  send  the  Petition  up  to 
the  Lords,  that  the  issue  was  squarely  faced.  If  the  Commons  endorsed 
the  Petition  with  the  words  Soil  bailie  aux  signeurs  they  would  thereby 
make  it  a  bill.^  According  to  Elsynge,  it  was  by  this  endorsement  that 
the  Commons  began  to  have  any  part  in  the  action  taken  upon  petitions, 
and  by  this  participation  they  changed  them  from  petitions  to  private 
bills. ^  Here  again  it  must  be  noted  as  in  its  form,  the  resemblance  is  to 
a  private  not  a  public  bill.  The  reasons  given  by  those  who  wished  the 
endorsement  were  two.  First  it  would  make  it  a  law.  This  argument  was 
advanced  by  those  who  still  doubted  the  efficacy  of  going  by  petition.^" 
The  second  reason  was  that  it  would  strengthen  the  Petition.  "I  desire," 
said  Wentworth,  "nothing  may  be  omitted  to  make  this  peticion  to  all 
posterity  firme  and  free."^^  "We  fell  upon  a  petition,"  said  Coryton,  "but 
we  all  purposed  to  make  it  the  strongest  wee  canne."^^    Perhaps  Rich,  better 

2  M,  153;  B,  144;  H,  5324:28;  G.  3:75.  3  Rich.     B,  193. 

*  See  Mcllwain  The  High  Court  oj  Parliament,  p.  223. 

'  Rotutus  Parliamenti  de  Anno  Tercio  Caroli  Regis.     Printed  in  Statutes  of  the  Realm,     Intro.,  77-78. 

6  M.  199. 

'  The  readings  were  not  recorded  in  the  Journal  in  the  same  formal  way  as  the  readings  of  a  bill. 
Instead  of  "L  la"  and  "L  2a,"  the  simple  statement  is  made:  "The  Petition  of  Right  twice  read"  (C.J. 
1:905).     The  "petition  de  droit"  referred  to  above  (n.  1)  received  three  formal  readings.  C.J.  1:431. 

8  Littleton.     G.  4:112. 

»  "In  the  time  of  Henry  4,  few  petitions  were  directed  to  the  king  and  his  council.  Some  were  directed 
to  the  king  alone;  some  to  the  lords  a.lone  and  some  to  the  commons.  But  I  find  no  answer  by  the  commons. 
Only,  if  they  were  petitions  of  grace,  the  commons  wrote  this  inscription  over  the  first  line,  viz.  Soil 
bailie  as  seigneurs  put  parler  aroy;  or  Soil  parte  a  toy  per  les  seigneurs.  The  others  were  sent  up  to  the 
lords  without  any  direction;  and  here  first  began  the  private  bills  now  exhibited  in  Parliament."  Henry 
Elsynge.  The  Manner  of  Holding  Parliaments,  London,  1768,  p.  287.  It  was  written  by  Elsynge  in  1625 
while  he  was  Clerk  of  Parliament.  Ibid.  Preface  vii. 

■"Ball:  "If  there  be  that  endorsement,  it  is  a  law;  if  not,  I  know  not  what  fruit  it  shall  have." 
M.  201. 

•'  G,  4:106  '-  M.  201. 


46  FRANCES  HELEN  RELF 

than  any  one  else,  explained  how  the  endorsement  would  strengthen  the 
Petition.  "This,"  he  explained,  "will  witnes  our  assent  to  all  posteritie, 
or  else  it  may  bee  a  question  whether  wee  assented  or  not,  there  is  noe 
other  stampe  of  our  assent;  if  wee  would  have  the  memoriall  of  this  to 
endure  to  posteritie,  lett  it  appeare  by  the  record  itself e."^^  The  Commons 
were  tr>'ing  to  do  two  distinct  things  at  the  same  time.  They  wanted  the 
King's  assent  on  record,  but  they  also  wanted  the  strongest  possible  decla- 
ration from  the  two  Houses. ^^  The  reason  they  wanted  the  latter  is  obvious. 
Sir  Edward  Coke  maintained  that  "whatsoever  the  lords  house  and  this 
house  have  at  any  time  agreed  upon  no  judge  ever  went  against  it."^^  But 
though  he  made  this  claim.  Coke  was  one  of  those  who  most  positively 
opposed  the  endorsement.  Aside  from  the  objections  (already  enumer- 
ated) involved  in  going  back  to  a  bill,  there  was  an  added  objection  in 
regard  to  the  King's  answer. 

The  same  subcommittee  which  had  been  appointed  to  report  on  how 
the  Petition  should  be  sent  up  to  the  Lords  was  also  to  report  on  how 
they  should  ask  the  King  to  give  his  assent.  Though  they  could  not  come 
to  any  agreement  on  the  first  question,  they  were  unanimous  in  desiring 
that  the  King  give  his  assent  in  full  Parliament.  Coke  maintained  that 
it  was  part  of  the  procedure  of  a  petition  from  both  Houses  that  it  be 
answered  in  Parliament. ^^  Such  a  petition  was  "no  Whitehall  case."^^ 
They  must  urge  it  upon  the  Lords  as  the  proper  procedure  for  their  Peti- 
tion.'* But  if  it  were  endorsed,  they  could  not  ask  the  King  to  assent  in 
Parliament  without  asking  that  he  make  it  a  law.'^  From  the  first  there 
had  been  a  desire  to  surrotmd  the  King's  promise  with  all  the  form  and 
solemnity  possible.  Entirely  aside  from  the  question  as  to  whether  his 
answer  given  in  Parliament  would  be  more  binding  than  if  given  at  White- 
hall, there  was  the  question  of  the  effect  on  the  public.  In  the  eyes  of  the 
outside  world,  pomp  and  ceremony  would  play  an  important  part.  The 
leaders  by  no  means  neglected  a  consideration  of  the  probable  effect  upon 
the  King  of  a  wide  spread  knowledge  of  the  solemnity  of  his  act.^°     From 

"  M.  200  verso. 

'<  In  referring  to  the  Petition  a  year  later,  Selden  termed  it  "the  Declaration  of  both  houses  of  parlia- 
ment, and  the  Answer  of  his  Majesty  to  that  Declaration."     Stale  Trials  3:265. 

"M,201.     For  the  King's  answer  to  this  assertion  see  above  p.  43,  n.  65.     "»M,202;B,  195;G, 4:114. 

>'  M,  202.     Petitions  frona  the  Commons  alone  were  answered  at  Whitehall. 

"  Coke  believed  so  strongly  in  the  judicial  functions  of  Parliament,  he  looked  upon  the  Petition  so 
entirely  as  a  judicial  act,  that  it  seems  fairly  safe  to  conclude  that  any  procedure  proposed  by  him  was 
judicial,  not  legislative. 

«•  "This  [the  endorsing]  being  done,"  said  Rich,  "wee  shall  referr  it  to  his  Majestie  either  to  answer  it 
in  Parliament  and  then  it  is  an  Act  of  Parliament,  if  ought  of  Parliament  then  it  is  but  a  petition."  M  , 
200  verso. 

»'  Upon  his  delivery  of  the  Petition  to  the  King,  the  Lord  Keeper  was  to  say:  "It  is  the  humble 
desire  of  both  Houses,  in  respect  of  the  great  weight  of  the  business,  and  for  the  strengthening  of  it,  and 
for  the  more  comfort  of  his  loving  people,  that  His  Majesty  would  be  pleased  to  give  His  Answer  in  full 
Parliament."  L.  J.3:827. 


THE  PETITION  OF  RIGHT  47 

Pym  came  the  proposal  which  solved  the  problem.  "Lett  it  bee  carried 
up  indifferently,"  he  suggested,  "and  lett  the  lords  know  that  wee  will  pre- 
sent it  to  his  Majesties  grace  to  bee  the  one  or  the  other."^^  But  which- 
ever he  might  desire  to  make  it,  said  Pine,  "to  move  that  the  King  wold 
magnify  himself  soe  much  as  in  Parliament  to  give  his  consent. "^^  It  was 
so  ordered  by  the  House.^^  In  sending  the  Petition  up  to  the  Lords,  the— 
Commons  did  not  commit  themselves  decisively  for  either  bill  or  petition. 

On  the  same  day  as  the  Petition  was  sent  up  to  the  Lords,  May  27, 
it  received  three  readings  there  and,  being  put  to  the  question,  was  assent- 
ed to  unanimously  .2*  If  such  an  action  had  no  significance  in  the  lower 
House  neither  had  it  in  the  upper.  It  was  not  decisive  either  way.  At 
most  we  would  naturally  conclude  that  it  was  only  yielding  to  the  op- 
position on  a  nonessential  point.  Parliament  considered  that  up  to  this 
time  they  had  not  committed  themselves  one  way  or  the  other.  The 
King's  answer  becomes  then  the  determining  action.  Regarding  this  an- 
swer there  are  three  points  to  consider;  the  place,  the  time,  and  the  form. 
The  significance  of  the  first  has  already  been  discussed.  After  some  de- 
bate,25  the  Lords  joined  with  the  Commons  in  requesting  that  the  answer 
be  given  in  fiill  Parliament.^^  The  King  complied.  As  far  as  ceremony  ^- 
was  concerned  the  Petition  was  answered  in  exactly  the  same  way  as  were 
bills. 2^     We  have  not  yet  come  to  the  parting  of  the  ways. 

The  second  point  is  the  time  when  the  answer  was  given.  According  — 
to  the  usage  of  that  period  no  law  received  the  King's  assent  until  the 
end  of  the  Session.  When  the  Petition  was  first  proposed,  Rich  had  point- 
ed out  that  one  of  its  greatest  advantages  was  that  they  could  have  the 
King's  answer  before  they  decided  on  the  bill  of  subsidies.^^  On  the  27, 
Sir  WilHam  Beecher  again  called  this  to  their  attention.  "If  we  send  it 
up  with  the  Indorsement  as  a  law,"  he  pointed  out,  "we  cold  have  no 
answere  till  the  late  end  of  the  Parlament."^^  Against  this  view  there 
was  only  one  member  who  protested.  "As  for  the  Kings  assent,"  claimed 
Ball,  "though  he  now  give  assent,  yet  it  is  noe  session,3°  and  in  18  Jac.  it 
was  so  resolved  by  the  house. "^^     The  records  for  the  Parliament  of  1620- 

21  M,  201,  fcrw.  22  G,  4:114. 

23  "By  question  resolved  that  this  Petition  of  Right  shalbe  sent  up  to  the  Lords  as  a  Petition  of  Right, 
and  they  desired  to  joyne  with  us  in  presenting  it  to  the  King. 

"2.  Resolved:  that  the  Lords  shal  bee  desired  to  joyne  with  this  house  to  desire  the  King  to  give 
his  answer  thereto  in  full  Parliament."  G,  4:115.     See  also  C.J.  1:905-906. 

24  "Hodie  la.  vice  lecta  est,  the  said  Petition  of  Right.  .  .  .  Hodie  2a.  et  3a.  nice  lecta  est,  the 
Petition  of  Right.     Put  to  the  Question,  and  Assented  unto  per  omnes,  nemine  dusentienl."     L.J.  3:826. 

25  Ibid.,  826.  ^  Ibid.,  827. 

2'  Compare  Ibid.,  835  and  843  with  879.  This  of  course  applies  to  the  first  as  well  as  the  second 
answer.  The  Petition  for  Religion  presented  by  both  Houses  in  1625  was  answered  by  a  message  instead 
of  in  this  formal  way.     L.J.  3:465. 

28  M,  153;  N,  147;  H.  5324:28.  s»  0,4:112. 

3"  11  does  not  end  the  session,  is  what  he  meant.  '•  M,  201. 


48  FRANCES  HELEN  RELF 

21  do  not  bear  out  his  assertion,  but  rather  the  opposite  view.^^  That 
the  Petition  received  the  King's  assent  in  the  midst  of  the  Session  is  in- 
deed, to  me,  the  strongest  evidence  that  it  was  granted  as  a  petition  and 
not  as  a  bill.'^ 

It  is,  however,  the  third  point  that  has  always  been  considered  the 
vital  one.  Most  writers  have  claimed  that  the  King's  second  answer  made 
the  Petition  a  law.^^  That  answer  was  in  the  words,  Soit  droit  fait  come 
est  desire'.  The  claim  is  based  on  the  supposition  that  these  words  are  a 
usual  form  of  assent  to  a  bill.^^  If  that  is  true  then  it  follows  that  a  peti- 
tion of  right  is  a  usual  form  of  bill;  the  two  things  must  go  together.  Is 
there  any  authority  for  such  a  supposition?  In  the  time  of  Henry  VIII, 
we  find  clearly  set  forth  three  kinds  of  bills,  pubHc,  private,  and  money, 
with  the  stereotyped  form  of  answer  for  each.^^  D'Ewes  in  his  Journal 
of  all  tJie  Parliaments  of  Queen  Elizabeth  gives  the  same  three  kinds  of  bills 
with  the  same  answers."  There  seems  to  be  only  one  authority  for  in- 
cluding a  petition  of  right  among  the  several  kinds  of  bills.  That  authority 
is  a  poorly  recorded  speech  of  Selden's  on  June  24,  1628.  As  a  proof  of 
the  real  character  of  tonnage  and  poundage,  Selden  pointed  out  that  such 
a  bill  received  the  same  form  of  assent  as  other  money  bills.  In  doing 
this  he  gave  the  forms  of  bills  with  their  answers.  As  given  in  Rush- 
worth  his  list  includes  petitions  of  right  and  the  answer  which  he  gives 
for  it  is  that  which  the  King  had  given  to  the  Petition  on  June  7.^^     But 

»-  The  question  arose  when  the  King  decided  to  adjourn  the  Session  for  the  summer  instead  of  pro- 
roguing it.  He  was  willing  to  give  his  consent  to  some  bills  that  were  ready  if  that  act  would  not  bring 
the  Session  to  a  close.  In  both  Houses  and  among  the  judges  there  was  a  sharp  difference  of  opinion. 
The  Lords  wished  to  obviate  the  difficulty  by  passing  "An  Act  that  the  King's  Royal  Assent  to  some 
special  bills  shall  not  determine  the  sessions."  The  Commons  declined  to  consider  this  bill  largely  be- 
cause, as  a  matter  of  policy,  they  did  not  wish  the  King  to  assent  to  any  bills  at  the  time;  but  there  was 
also  the  feeling  that  in  doing  so  a  dangerous  precedent  would  be  established.  For  these  proceedings 
see  L.J.  3:146.  148.  ISO;  C.  J.  1:630,  633,  634,  638;    Nicholas  for  1621,  2:113,  137,  138,  139,  141. 

» In  1625,  under  circumstances  similar  to  those  in  1621,  an  act,  'That  this  Session  of  Parliament 
shall  not  determine  by  His  Majesty's  Royal  Assent  to  this  and  some  other  Acts,'  was  introduced  and 
this  time  became  a  law.  Before  the  Session  was  adjourned  the  King  gave  his  assent  to  several  bills. 
But  the  circumstances  were  very  different  from  those  surrounding  the  assent  to  the  Petition  of  Right. 
It  was  immediately  before  an  adjournment  of  considerable  length,  the  assent  was  given  in  return  for  a 
money  grant,  and  all  the  bills  then  ready  were  presented.  It  can  hardly  be  considered  as  a  parallel  case  to 
that  of  1628.  There  was  indeed  special  reason  why,  if  the  Petition  was  an  act,  it  should  have  been  passed 
with  the  bill  of  subsidy.  The  intention  from  the  first  had  been  that  the  two  should  go  hand  in  hand. 
To  that  end  supply  and  grievances  had  been  referred  to  the  same  grand  committee.  C.J.  1:875. 
"Gardiner:     "The  Petition  of  Right  like  every  other  statute   .    .    ."     (6:327). 

Forester:     "From  this  summer  afternoon  was  to  date  the  enactment  of  a  law"     (2:103). 

Taswell-Langmead:     "The    King   .    .    .   gave  to   this  .    .    .   compact  ...   the   sanction   of   an 
Act  of  Parliament"     (p.  439). 

Gneist:     "The  King  is  compelled   .    .    .   to  approve  the  declaratory  statute"     (2:236). 

"Gardiner:     "The  clerk  pronounced  the  usual  words  of  approval"     (6:309). 
Hallam  states  that  the  King  assented  "to  the  bill  in  the  usual  form"     (1:382). 
Taswell-Langmead:     "The  king  at  length  signified  the  royal  assent    in    the    customary    form" 
(p.vl39). 

"L.J.  1:9.  "p.  35. 

"  "For  public  Bills,  the  King  saith.  Le  Roy  veult;  for  Petitions  of  Right,  Soit  droit  fail  come  est  desire. 
For  the  Bill  of  subsidies  ..."     (1:628). 


THE  PETITION  OF  RIGHT  49 

from  the  list  is  omitted  entirely  the  private  bill  and  its  answer.  That  that 
was  what  Selden  really  gave  instead  of  the  petition  of  right  is  suggested 
by  another  version  of  this  same  speech  which  gives  the  regulation  answer 
to  a  private  bill.^^  Among  all  the  modem  writers  on  parliamentary  pro- 
cedure only  one  includes  petitions  of  right  among  the  several  forms  of  bills ; 
and  he  fails  to  cite  any  authority  for  so  doing.^°  There  does  not  seem 
to  be  then  any  basis  for  the  assumption  that  a  petition  of  right  was  a 
legislative  procedure  with  a  stereotyped  form  of  answer. 

That  there  was  no  regular  form  of  answer  for  a  public  petition  of  right 
is  further  proved  by  the  variety  of  answers  considered  at  the  meeting  oi 
the  Council.'^^  The  use  of  English  instead  of  the  old  Norman-French,  the 
length,  and  the  variety  all  show  no  knowledge  of  any  existing  model. 
The  answer  soil  droit  fait  come  est  desire'  was  suggested  not  by  the  Council 
but  by  Parliament. ^2  According  to  a  contemporary  writer  they  claimed  that 
it  was  the  "ancient  form"  of  assent  to  a  public  petition  of  right.^^  Whether 
they  had  any  basis  of  authority  for  such  a  statement,^^  ca:  whether  they 
arrived  at  their  conclusion  by  a  process  of  deduction,  it  is  impossible  to 
say.  The  latter  would  not  have  been  difficiilt.  There  still  remained  the 
private  petition  of  right  with  its  stereotyped  form  of  answer,  Soit  droit 
Jaite  a  la  partie.  With  this  form  of  petition,  Parliament  no  longer  had 
anything  to  do.  But  there  was  a  form  of  petition  remaining  to  Parlia- 
ment; this  was  the  petition  of  grace,  which  had  become  the  private  bill, 
and  the  stereotyped  form  of  answer  for  which  was  Soit  fait  come  il  est 
desire'.  What  was  more  natural  than  to  conclude  that  in  the  time  when 
all  petitions  were  presented  through  Parliament,  the  answer  to  the  peti- 
tion of  right  partook  somewhat  of  the  form  still  retained  by  the  parlia- 
mentary petition?  However  that  may  have  been,  it  is  safe  to  conclude 
that  the  Commons  modeled  their  proposed  answer  on  the  answers  to  a 
private  petition  of  right  and  to  a  private  bill.^^ 

39  "For  public  bills  the  king  saith  soit  fail  come  il  est  desire;  for  the  bill  of  subsidies"  .  .  .  (M,  270 
verso).  It  is  very  evident  that  there  is  a  serious  omission  in  this  record;  it  has  left  out  the  answer  to  the 
public  bill  and  the  kind  of  bill  to  which  soit  ...  is  the  answer;  but  that  that  is  a  private  bill  there  can 
be  no  doubt. 

i^Sir  Erskine  May  gives  money  bills,  public  and  private  bills,  and  then  adds,  "upon  a  petition  de- 
manding a  right,  whether  public  or  private.  Soil  droit  come  il  est  desire"  (p.  484).  The  authority  he  cites 
is  D'Ewes  who,  as  has  already  been  pointed  out,  does  not  include  this. 

"  For  the  full  text  of  the  proposed  answers  see  Appendix  C. 

42  In  giving  his  second  answer  the  King  said,  "I  am  willing  to  please  you  in  words  as  well  as  in  the 
substance."     L.J.  3:843. 

"  Mead  explained,  in  a  letter  he  wrote  on  June  15,  that  the  King  "was  told  they  desired  the  ancient 
form  heretofore  used  by  his  ancestors."  Court  and  Times  1:362  n. 

"  If  there  is  any  authority,  modem  writers  on  the  subject  have  all  missed  it. 

«  Sir  Wm.  Anson  gives  this  solution  of  the  problem:  "The  Petition  of  Right  is  the  only  great  public 
statute  to  which  the  royal  assent  was  given  in  terms  applicable  to  a  private  bill:  and  perhaps  the  Petition 
of  Right  may  be  regarded  not  so  much  as  a  statute  making  new  law  as  an  address  of  both  Houses  to  the 
Crown  that  the  ancient  laws  and  statutes  of  the  realm  should  be  observed.  It  may  be  that  to  such  an 
address  it  was  not  thought  suitable  to  reply  in  the  words  of  assent  to  a  request  or  proposal  for  new  legis- 
lation"    (Pt.  1:287). 


50  FRANCES  HELEN  RELF 

What  then  is  the  meaning  of  Soil  droit  fait  come  est  desire'?  Should  it 
be  translated  Let  right  be  done  as  is  desired?  This  would  make  it  a  promise 
for  redress  of  grievances.  In  giving  the  second  answer  the  King  said: 
"This  I  am  sure  is  full,  yet  no  more  than  I  granted  you  in  my  first  answer."^** 
The  first  answer  had  been:  "The  King  willeth  that  right  be  done  accord- 
ing to  the  laws  and  customs  of  the  Relme."  .  .  .  The  wording  of  this 
taken  with  the  King's  assertion  is  sufficient  proof  that  the  judicial  trans- 
lation is  correct.  This  is  confirmed  by  the  character  of  the  other  answers 
proposed  at  the  Council  meeting.  Great  as  is  the  variety  in  these  pro- 
posals, they  all  agree  in  certain  points.  They  are  all  the  King's  promise 
that  the  law  shall  be  observed.  Some  are  much  more  explicit  than  others, 
some  even  limit  the  interpretation  of  the  law  as  given  in  the  Petition,  but 
all  are  the  King's  promise  for  judicial  remedy. 

In  the  face  of  the  contemporary  evidence,  one  must  admit  at  the  very 
least  that  both  answers  were  of  the  same  character,  that  is  that  either 
they  were  both  judicial  or  both  legislative.  Admitting  that,  another  proof 
that  the  second  answer  was  not  legislative,  that  it  did  not  make  the  Peti- 
tion a  statute,  is  to  be  found  in  the  traditional  interpretation  of  the  first 
answer.  Most  writers  assert  that  it  was  in  reality  a  negative  answer.*'' 
The  contemporary  evidence  is  all  opposed  to  this  view.  The  objection 
of  the  Commons  was  only  that  it  was  too  vague,  too  ambiguous.  It 
"hath  no  relacion  to  the  peticion,"  said  Pym,  "the  answere  being  left  at 
large  to  the  lawes,  whereas  we  have  in  our  peticion  alledged  certyene 
lawes."*^  "Lett  his  Majesty  declare  his  meaning,"  said  Rudyard.*^  "Not 
to  desire  a  new  answer,"  said  Hobby,  "but  an  explanation  of  that  answer." 
Phelips,  who  felt  that  the  answer  had  really  come  from  Buckingham  and 
not  from  the  ICing,  added,  "an  explanation  of  himself  by  himself,  not  of 
any  others  who  make  him  to  speak  in  oracles."^"  These  objections  show 
that  they  did  not  consider  the  first  answer  equivalent  to  a  refusal  or  that 
it  made  the  Petition  ineffective;  their  only  objection  was  to  its  vagueness. 
Vague  as  it  was,  there  were  those  who  upheld  it.  "There  may  be  a  pos- 
sible interpretacion  to  make  it  good,"  said  Pym.^^  "I  do  not  hold  it  al- 
together unsatisfactory,"  was  another's  opinion.^^  g^^  Cor^^ton  was  most 
to  the  point:  "The  answer  may  receive  various  constructions,  and  so  it 
may  receive  a  good  one  and  so  I  take  it,  but,  howsoever  the  Lords  and 

"LJ.  3:844. 

♦'  Of  the  first  answer  Gardiner  says  that  it  "meant  nothing  at  all It  was  Charles's  old  ofiFer 

of  confirming  the  statutes  whilst  refusing  the  interpretation  placed  upon  them  by  the  Commons"    (6:297). 

Taswell-Langmead  says  that  the  first  answer  "was  tantamount  to  a  refusal  to  pass  the  Bill,"  whereas 
the  second  gave  it  "the  sanction  of  an  Act  of  Parliament"     (p.  439). 

They  could  not  very  well  have  come  to  any  other  conclusion.  There  could  be  no  half  way  about  a 
legislative  answer. 

••  Pym,  N,  188.     "The  petition  cometh  not  home,"  is  the  way  it  was  put  by  Hayman.     G,  5:S5. 

«»B.  222.  "G,  5:47.  "  G,  54. 

»« Vaughan.  G.  55. 


THE  PETITION  OF  RIGHT  51 

Commons  have  agreed  this  to  be  our  rights,  and  I  think  no  minister  of  jus- 
tice dare  do  to  the  contrary,  and  I  think  this  may  well  satisfy. "^^ 

The  belief  that  the  two  answers  were  opposed  to  each  other,  that  the 
first  was  negative  and  the  second  positive,  has  undoubtedly  been  fostered 
by  another  equally  mistaken  notion.  This  is  that  the  Commons  forced 
the  King  to  give  the  second  answer  by  beginning  immediately  an  attack 
upon  Buckingham.  The  desire  for  a  second  answer  was  not  the  motive 
back  of  that  attack.  The  connection  between  the  two  is  quite  different. 
The  King  offered  the  second  answer  in  an  attempt,  futile  as  it  proved,  to 
stop  that  remonstrance.  In  order  to  remove  this  mistaken  notion  re- 
garding the  demand  for  a  second  answer  it  is  necessary  to  give  a  detailed 
account  of  what  took  place  in  the  House  of  Commons  between  June  2, 
when  the  first  answer  was  given,  and  June  7,  the  date  of  the  second.  It 
is  necessary  even  to  go  back  much  further  in  order  to  explain  why  the 
attack  was  made  at  this  time.  Forster,  in  his  Life  of  John  Eliot,  tells  how, 
four  days  before  the  Session  began,  the  leading  members  of  the  lower 
House  met  together  to  formulate  their  plans.  Eliot  wished  to  revive  the 
impeachment  of  Buckingham,  but  he  was  overriiled  and  it  was  decided 
to  proceed  by  bill  as  the  better  method  of  putting  an  end  to  the  abuses.^* 
Only  after  reading  the  debate  of  June  3,  and  the  succeeding  days,  can  one 
appreciate  the  restraint  the  Commons  put  upon  themselves.  "We  never 
meddled  with  persons,"  said  Selden,  looking  back,  "we  were  upon  the 
substance  only."^^  As  long  as  there  had  been  the  expectation  of  reaching 
the  ministers  by  a  law  no  protest  had  been  made;  but  when  the  question 
arose  of  abandoning  the  bill  with  a  penalty  there  was  an  immediate  out- 
cry. "We  have  declined,"  said  Coryton,  ''seeking  the  punishment  of 
those  that  have  beene  the  cause  of  those  breaches  on  our  liberties,  and  if 
we  have  not  examples  made  to  deterre  others  from  doing  the  like,  then  we 
must  make  a  lawe  to  prevent  the  like  for  the  future."^^  It  was  men  like 
Eliot  and  Wentworth,  the  men  most  anxious  to  punish  the  ministers,  who 
were  the  last  to  relinquish  the  hope  of  returning  to  a  bill.  From  what 
followed  it  seems  probable  that,  at  the  time  the  Petition  was  decided  upon, 
they  were  promised  by  those  favoring  the  Petition  that  as  soon  as  that 
was  safely  out  of  the  way  they  would  be  given  the  opportunity  to  make 
their  attack.  One  can  not  but  think  that  for  many  days  Eliot  had  had  his 
speech  of  Jime  3  prepared.  Without  waiting  even  for  a  discussion  of  the 
King's  first  answer,  he  sprang  it  upon  the  House. 

Eliot's  speech  came,  no  doubt,  as  a  great  surprise  to  most  of  the  mem- 
bers, and  they  naturally  looked  for  the  cause  in  what  had  immediately 
preceded  it.  "It  is  folly,"  said  one  of  the  King's  supporters,  "to  conceal 
what  every  one  thinks,  this  speech  came  from  the  scantnes  of  the  Kings- 

It  L,  39.  M  2:1-2.  "  June  10.     M,  237  verso. 

M  N,  125.     "Either  example  or  law  must  secure  us."     G,  3:13. 


52  FRANCES  HELEN  RELF 

answer  to  our  petition,  let  us  apply  ourselves  to  that  and  petition  his 
Majestie  for  a  fuller."^'  Eliot  was  quick  to  answer:  "Where  it  is  said 
that  some  distrust  of  the  Kings  answer  caused  this,  I  protest  to  the  con- 
trar>%  and  I  and  others  too  have  had  this  resolution  to  satisfy  his  Majesty 
therein,  only  we  stayed  for  an  opportunity."^^  Had  the  King  given  the 
more  satisfactory  answer  in  the  beginning,  the  attack  on  Buckingham  would, 
nevertheless,  have  followed.  His  answer  had  probably  made  it  more  bitter, 
but  that  was  the  only  connection  between  the  two.  That  the  King  be- 
lieved that  the  attack  was  the  result  of  his  answer  is  evident  from  the 
character  of  his  first  attempt  to  stop  the  remonstrance.  In  a  message 
dehvered  by  the  Speaker  on  June  4,  he  declared  his  resolution  to  abide  by 
his  answer  to  the  Petition  "without  further  change  or  alteration. "^^  It 
was  his  armouncement  to  the  Commons  that  he  would  not  be  intimidated; 
if  that  was  their  purpose  they  might  as  well  give  up.  Without  making 
any  comment  on  the  message,  the  Commons  proceeded  with  their  regular 
business.  The  next  day  came  a  more  peremptory  message.  They  were 
ordered  not  to  take  up  any  business  "which  may  lay  any  scandal  or  asper- 
sion upon  the  state,  government,  or  ministers  thereof."^"  This  message 
served  only  to  intensify  the  feeling  and  to  make  the  members  speak 
more  plainly.  The  Speaker  became  so  terrified,  when  he  found  himself 
luiable  to  stop  the  torrent  of  words,  that,  upon  the  House  going  into  com- 
mittee, he  asked  permission  to  leave.  While  the  Commons  proceeded  to 
name  Buckingham  as  the  "grievance  of  grievances''^^  and  the  evidence  was 
being  heaped  up  against  him,  the  Speaker  was  closeted  with  the  King 
discussing  their  next  move.^^  Upon  his  return,  he  immediately  adjourned 
the  House  until  the  next  morning.  At  that  time,  after  explaining  in  very 
conciliatory  terms  the  King's  last  message,  he  continued:  "This  day  was 
appoynted  to  consider  of  his  Majesties  answer  to  our  petition.  I  hope 
if  wee  find  anie  thing  fitt  for  our  comfort  wee  will  lay  hold  on  it,  if  not 
wee  may  seeke  for  a  fuller  answer. "^^  The  King  had  played  his  last  card. 
It  may  be  said  by  some  that  even  in  spite  of  Eliot's  denial,  all  that  the 
Commons  had  done  so  far  they  had  really  done  in  order  to  force  the  King 
to  make  this  offer.  But  that  assumption  is  disproved  by  their  refusal  to 
take  advantage  of  the  offer.  This  is  clearly  demonstrated  by  the  fact  that 
the  burden  of  argument  was  put  upon  those  who  wished  to  petition  for 
another  answer.     "If  it  be  declined  now,"  said  Alford,  "it  may  hereafter  be 

"  Sir  Thomas  German.     M.  211  verso-212.  's  m.  212. 

»»  O.P.H.  8:168.  "o  Ibid..  190.  «!  Sir  Ed.  Coke.     G,  5:26. 

"Packer:  "our  Speaker  gone  to  the  King"  (G,  5:38).  "The  Speaker  having  been  three  hours 
absent,  and  with  the  King"  .  .  .  (From  a  letter  by  Mr.  Allured,  a  member,  written  on  June  6,  and 
printed  in  Rushworth  1:609-610).  "The  Speaker  seeing  the  house  so  moved  in  the  morning,  and  none 
scarce  able  to  speak,  and  himself  also  in  that  condition,  desired  leave  to  go  out  a  while,  which  was  granted 
and  he  went  to  the  King,  and  stayed  with  him  till  near  12  of  Clock"     (M,  218  verso). 

-  M.  219. 


THE   PETITION  OF  RIGHT  53 

denied.  ...  A  good  answer  to  this  will  bring  good  content  to  our 
country."^*  Eliot  had  given  as  the  reason  for  not  asking  for  a  fuller  answer, 
that  it  woiild  involve  conferences  with  the  Lords  which  would  consume  a 
great  deal  of  time.  He  suggested  that  they  leave  it  to  the  King  to  make 
an  explanation  if  he  so  desired.^^  To  this  Perrot"^  and  Strangewayes" 
objected.  How  could  the  Commons  expect  an  explanation  from  the  King 
unless  they  let  him  know  they  were  dissatisfied?  Here  the  subject  was 
left;  no  one  had  even  suggested  that  it  be  put  to  the  question.  Instead 
that  subject  was  dropped,  and  it  was  ordered  that  the  grand  committee 
for  the  remonstrance  should  sit. 

By  this  time  the  remonstrance  was  pretty  well  in  shape.  On  the  day 
before,  while  the  Speaker  was  absent,  the  heads  had  been  decided  upon. 
Now  the  Commons  took  up  the  detail.  On  the  following  morning  there 
came  a  message  from  the  Lords  desiring  a  conference  regarding  the  King's 
answer  to  the  Petition.  The  motive  behind  the  Lords'  proposal  was  the 
same  which  had  actuated  the  King,  the  hope  of  putting  a  stop  to  the 
remonstrance.  'T  believe,"  Bristol  had  said  in  support  of  the  proposal 
when  it  was  introduced  in  the  upper  House,  ''that  those  distractions  and 
fears  which  since  have  sprung  amongst  us  took  their  original  from  that 
answer."*^^  This  is  seen  also  in  the  Lord  Keeper's  speech  at  the  conference. 
The  reason  he  gave  for  making  the  request  to  the  King  was  "because  the 
Lords  conceive  that  the  good  intelligence  between  the  King  and  his  people 
depends  upon  the  said  answer. "^^  The  Commons  returned  to  their  own 
House  to  debate  whether  they  should  join  with  the  Lords.  Cory  ton  dis- 
approved of  the  haste  with  which  the  matter  was  being  put  through.'" 
He  moved  "to  have  our  answer  to  the  Lords  put  off  till  Monday. "^^  But 
Eliot,  the  leader  in  the  attack  on  the  administration,  turned  the  tide  when 
he  gave  as  his  opinion  that  "this  proposition  doth  no  way  contradict  that 
way  we  were  in."^^  ^rith  the  understanding  that  they  shoiild  still  go  on 
with  the  remonstrance,  the  Commons  joyfully  accepted  the  proposal  of 
the  Lords.  The  second  answer  had  not  been  forced  from  the  King,  nor 
had  he  gained  anything  by  giving  it.  It  must  not  be  thought  that  the 
Commons  had  at  any  time  shown  an  unwillingness  to  accept  a  second 
answer.  The  feeling  had  been  only  that  by  asking  for  another  answer 
they  would  do  their  cause  more  harai  than  good.  The  harm  such  a  re- 
quest might  do  lay  not  alone  in  the  effect  it  would  have  on  their  remon- 
strance, but  in  the  effect  it  would  have  on  the  interpretation  of  the  Petition. 

"M.  220. 

w  "I  assure  myselfe  his  Majestie  will  explaine  him  selfe  without  our  suit"  (M,  220).     See  also  L,  39; 
N.  187. 

MG,  5:52.  67  G,  5:54-55. 

"Gardiner.  6:308.     He  quotes  from  Elsing's  Notes.  «»  M,  224  wrxo. 

""There  is  no  such  haste  (and  not  liked  of)."     L.  41.  »G,  5:86.  'J  M.  224  rer^o. 


54  FRANCES  HELEN  RELF 

The  Commons'  chief  reason  for  being  reluctant  about  asking  for  a 
second  answer  had  been  their  fear  of  failure.  "If  we  should  fail  what 
interpretations  abroad,"  one  member  had  objected  when  the  subject  was 
first  introduced."^  Sir  Edward  Coke  had  expressed  no  opinion  during  the 
debate.  After  the  second  answer  was  received  he  explained:  "I  would  not 
find  fault  with  the  last  answer  (I  had  so  mutch  wit  in  my  head)  till  I  were' 
sure  whether  we  should  have  a  better  one."^^  To  have  objected  to  the 
first  would  have  been  to  have  interpreted  it.  Until  they  were  assured  of 
an  answer  in  which  there  was  "no  doubtfulness  nor  shaddowe  of  am- 
biguity,""°  it  was  policy  for  them  to  interpret  the  only  answer  of  which 
they  could  be  sure  in  the  light  they  wished  the  judges  to  interpret  it. 
This,  perhaps,  more  than  any  of  the  other  evidence  presented,  proves  the 
point  that  I  have  tried  to  make  clear, — that  the  two  answers  did  not  dif- 
fer, the  first  being  negative  and  the  second  positive.  The  difference  lay  in 
this  that  the  first  was  ambiguous,  the  second  was  clear.  This  conclusion 
can  not  be  applied  to  answers  to  legislation,  but  it  can  be  applied  to  an- 
swers to  a  petition  of  right. '^^ 

This  account  of  the  Progress  of  the  Petition  through  Parliament  has 
failed  unless  it  has  proved  first,  that  whatever  legislative  action  was  taken 
did  not  prevent  the  progress  of  the  Petition  as  a  petition  of  right;  and 
secondl}^  that  the  legislative  action  was  that  of  a  private  and  not  a  pub- 
lic bill.  A  private  act  is  not  a  binding  law.  It  is  doubtful  whether  the 
Commons'  lawyers,  especially  Coke,  would  have  considered  it  as  having 
as  great  force  as  a  declaration  of  the  law  given  by  the  two  Houses  in  their 
judicial  capacity  and  endorsed  by  the  King.  This  latter  is,  moreover,  the 
conception  of  the  Petition  which,  I  am  convinced,  was  generally  held  at 
the  time.  There  would,  indeed,  be  little  point  in  telling  the  story  of  the 
Petition's  progress  through  Parliament,  if  afterward  it  had  been  treated 
as  a  binding  law.  In  order,  therefore,  to  determine  the  force  of  the-  Peti- 
tion and  Answer  it  is  necessary  to  follow  its  course  after  June  7. 

There  are  two  things  to  consider  in  discussing  the  force  of  the  Peti- 
tion and  Answer;  first,  the  attempts  to  give  it  publicity  and  permanence; 
secondly,  its  interpretation  by  the  judges.  A  consideration  of  the  first  will 
show  that  it  was  not  treated  as  a  public,  or  even  a  private,  statute.  When 
on  May  6,  the  idea  of  going  by  petition  had  been  first  discussed  the  general 
idea  had  been  that  with  the  King's  answer  it  should  be  used  as  a  preamble 

"Vaughan.     G,  5:55.  ^*  B,  225  verso-226. 

"  Sir  Edward  Coke.     B,  226. 

"  Holburn  in  1637.  "It  appears  that  the  first  answer  was,  that  the  laws  should  be  put  in  execution; 
yet  in  the  close  there  is  put  in  a  saving  of  the  prerogative:  but  this  Answere  did  not  satisfy,  and  therefore- 
there  was  a  general  answer  Soit  droit  fail.  But  now  what  was  granted  by  the  last  Answer  more  than  the 
former,  only  that  the  law  was  left  more  absolute."     State  Trials  3:999-1000. 

Heath  in  1629.  "A  petition  in  parliament  is  not  a  law,  yet  it  is  for  the  honour  and  dignity  of  the 
King  to  observe  and  keep  it  faithfully."     Ibid.,  281. 


THE  PETITION  OF  RIGHT  55 

to  the  bill  of  subsidy."  The  reason  that  Alford  advanced  for  this  was 
that  the  Parliament  Rolls  were  not  published;''^  by  this  means  the  King's 
promise  would  become  known  to  the  whole  country.  Ball  pointed  out  that 
they  would  be  following  an  illustrious  example:  "Soe  it  was  in  magna 
Charta  and  28  of  Ed.  S."^^  On  June  9,  the  committee  for  the  preamble  of 
the  subsidy  bill  reported  that  they  favored  publishing  the  Petition  in  that 
way  only  if  another  plan  they  had  to  propose  failed.  Coke,  in  his  report, 
then  added  that  if  they  inserted  it  in  the  bill  they  would  not  "enacte  it."*° 
Perhaps  some  had  thought  that  in  this  way  they  might  still  make  it  a 
binding  law.  But  the  interest  to  us  is  that  there  would  have  been  no 
point  to  this  remark  if  the  Petition  had  already  been  enacted. 

The  better  plan  advocated  by  the  committee  was  "that  this  petition 
and  answer  bee  published  and  to  that  end  the  Lords  are  to  be  mooved  that 
it  bee  entred  in  the  Parliament  Roll,^^  and  because  perhaps  that  Roll 
may  bee  lost,  seeing  it  is  soe  honourable  for  the  King,  to  moove  the  King 
that  it  may  be  entred  in  the  Courts  of  Justice  at  Westminster  and  allsoe 
that  it  bee  printed."^^  T^e  King^^  and  Lords^^  having  agreed  to  all  parts 
of  this  proposal  the  next  question  was  how  it  should  be  done?  What 
seemed  to  worry  them  was  how  to  get  it  entered  in  the  Courts  at  West- 
minster. "It  must  be  done,"  explained  Coke,  "by  the  King's  writt  re- 
citing the  peticion  and  commanding  the  judges  to  inroU  this."^»  Later  Sel- 
den  gave  the  proceeding  in  greater  detail, ^"^  the  Lord  Keeper  reported  the 
Commons'  wish  to  the  Lords,  and  the    Lords  gave  the  order;"  from  an 

"  Alford.  M,  ISO;  G.  3:58;  Ball,  M,  151  verso;  G,  3:66.     Phelips.  B,  143  verso.  "  G,  3:59. 

"  B,  141  verso.     Truly  the  bargain  idea  was  as  prevalent  in  1628  as  it  had  ever  been  when  the  King 
was  forced  to  confirm  the  Great  Charter. 
8"  B,  231  verso. 

81  No  particular  significance  can  be  attached  to  the  fact  that  the  Petition  of  Right  was  entered  in  the 
Parliament  Roll;  it  does  not  help  to  explain  its  nature.  With  the  fourth  year  of  Henry  VII  the  Statute  Roll 
ceased.  The  need  for  it  had  ceased  long  before  when  bills  took  the  place  of  petitions.  From  that  time  the 
Parliament  Roll  may  be  considered  as  having  taken  its  place.  But  the  latter  kept  its  informal  character 
through  the  Session  of  1628;  that  is  it  still  contained  other  proceedings  as  well  as  public  and  private  bills. 
The  Petition  of  Right,  as  printed  in  the  Statutes  of  the  Realme,  is  taken  from  the  Parliament  Roll.  But 
it  was  not  included  there  among  either  the  public  or  private  acts;  instead  it  is  placed  first  in  a  class  by 
itself.  The  editors  of  the  earliest  printed  editions  of  the  statutes  recognized  this  difference  by  not  number- 
ing the  Petition;  they  put  it  first  but  numbered  the  next  chapter  'I'.  Later  editors  failing  to  see  the  sig- 
nificance, numbered  the  Petition  '(D'  and  the  ne.xt  chapter 'I  (II)'.    Statutes  of  the  Realme.     Introduction. 

82  M,  230. 

83  The  King's  consent  was  delivered  only  by  word  of  mouth,  being  given  by  Sir  Humphrey  May. 
C.J.  1:910;  B,  232;  M,  229  verso. 

84  L.J.  3:851.  85  G,  5:149.  8a  M,  260  verso;  B,  270  verso. 

"  C.J.,  1:915.  It  is  very  doubtful  whether  this  order  was  ever  carried  out.  The  fact  that  it  was 
left  to  Attorney  Heath  to  see  that  it  was  done  is  sufficient  to  raise  one's  suspicions.  That  the  Lords  did 
nothing  to  enforce  the  order  is  suggested  from  the  fact  that  the  order  is  not  recorded  in  their  Journal. 
That  the  Commons  themselves  had  doubts  is  seen  from  the  committee  appointed  at  the  opening  of  the 
next  Session  "to  search,  whether  the  Petition  of  Right,  and  his  Majesty's  Answer  thereunto,  be  enrolled 
in  the  Parliament  Roll,  and  in  the  Courts  at  Westminster,  according  to  his  Majesty's  Pleasure,  signified 
the  last  Session"  (C.J.  1:920).  Though  this  committee  met  {Ibid.,  921,  923,  924),  there  is  no  record  of 
its  having  made  any  report.  Probably  this  committee  was  suppressed  as  was  that  for  investigating  viola- 
tions of  the  Petition.  Added  to  this  we  have  the  negative  evidence  that  the  Petition  is  not  to  be  found  in 
either  the  Rolls  Chapel  or  Petty  Bag  series  of  Cerliorai  bundles  for  this  period. 


56  FRANCES  HELEN  RELF 

examination  of  all  these  accounts  there  can  be  no  doubt  as  to  what  the  pro- 
ceeding was.  By  the  writ  of  Certiorari  addressed  to  the  Clerk  of  Parlia- 
ment, the  Petition  would  be  certified  into  Chancery  and  from  there  it 
would  be  sent  by  a  Mittimus  into  the  other  courts. 

This  was  an  ordinary-  procedure  with  private  acts  which  were  "not  en- 
rolled without  special  suit,  as  general  acts  are."^^  And  the  private  act 
"is  thereby  made  a  record  and  bindeth  the  party  whom  it  concemeth  and 
all  others. "^^  But  the  point  of  interest  in  connection  with  the  Petition  is 
that  in  having  it  certified  the  Commons  were  not  following  the  precedent 
of  procedtu-e  for  a  private  bill.  As  was  suggested  above,  the  Commons 
were  in  a  good  deal  of  doubt  as  to  how  they  should  proceed  to  get  the  Peti- 
tion enrolled  in  the  Courts.  A  committee  of  the  most  eminent  lawyers 
was  appointed  to  search  for  precedents.^"  Doubt  was  expressed  as  to 
whether  the  Lords  would  agree  to  the  procedure  they  proposed. ^^  The 
first  precedent  which  was  advanced  by  Coke  was,  "20  Ed  3,  Ltme  post 
fest  Epephaniae  magnum  placitum  inter  Gilb  [ert]  Clar  Erie  of  Gloster  and 
Bohtmi  Erie  of  Essex."  Coke  explained  that  "when  judjment  was  given 
betwixt  them,  both  were  fined:  and  by  the  King's  writt  the  Judgment  was 
sent  to  the  3  benches  to  be  enrolled  there. "^^  t^js  same  precedent  was 
quoted  in  1637  by  Littleton,  then  the  King's  sollicitor-general,  as  au- 
thority for  the  King's  writ  to  collect  shipmoney ;  for  that  case  in  1292,  he 
said,  proved  "the  king  is  'Recordum  superlativum  et  praeexcellens'."^^  For 
his  second  precedent  Coke  cited  "28  E.  1  rot.  clausa  memb.  2.  There  is  a 
writt  to  inroll  Magna  Charta,  and  to  see  it  observed."^''  Neither  of  these 
was  a  legislative  act;  more  than  that,  each  was  the  act  of  the  King  without 
the  Lords  and  Commons. 

Coke  very  significantly  added:  "This  Peticion  is  a  branch  of  Magna 
Carta:  and  fitt  to  follow  that  Presedent."^^  And  what  kind  of  an  act 
had  a  confirmation  of  Magna  Carta  been?  Not  legislative  certainly,  but 
a  promise  on  the  part  of  the  King  that  the  law  should  be  put  in  execution. 
This  is  the  way,  at  the  close  of  the  Session,  the  King  referred  to  his  act, 
using  such  phrases  as  "what  I  granted  in  your  petition"  and  "anything  I 
have  promised  you."^^  A  year  later  Heath  said  of  it:  "No  other  con- 
struction can  be  made  of  the  Petition,  than  to  take  it  as  a  confirmation  of 
the  ancient  liberties  and  rights  of  the  subjects.""     In  1637  Judge  Hol- 

••  Lord  Hobart  in  1617.     Quoted  in  Statutes  of  the  Realm.     Intro,  p.  35,     note  5. 

••  Elysinge.  MS  Cotl  Titus  B.V.,  p.  69.  Quoted  in  the  same  note  as  above.  See  also  the  pamphlet 
Privileges  and  Practices  of  Parliament,  1628. 

•°C.J.  1:912. 

•'  Eliot:  "Lett  us  send  to  the  lords  about  sending  of  it  in  to  the  Courts  of  Westminster;  and  if 
they  make  any  doubt,  that  we  have  a  conference  about  the  manner."  M,  260  verso. 

»«  G,  5:149.     See  also  M,  239  verso. 

"  Stale  Trials  3:924.  »«  M.  239  verso. 

»»  G.  5:150.  •<  L.J.  3:879.  "  Slate  Trials  3:281. 


THE  PETITION  OF  RIGHT  57 

born  made  the  same  assertion  that  the  King  promised  "the  laws  should  be 
put  in  execution. "^^ 

If  this  was  the  case  what  had  the  Commons  gained  by  refusing  a  bare 
confirmation,  by  going  a  weaker  way  in  order  to  include  their  explanation? 
The  interpretation  of  the  Petition  by  the  judges  shows  the  value  of  stating 
the  particular  grievances.  The  two  most  important  cases  are  the  pro- 
ceedings against  the  members  of  the  House  of  Commons  in  1629  and  the 
shipmoney  case  in  1637.  In  both  the  Petition  held  good  as  the  King's 
promise  for  the  redress  of  the  particular  grievances  against  which  protest 
had  been  made,  but  for  anything  more  than  that  the  judges  went  back  to 
the  laws  cited  in  the  Petition.  That  it  was  no  longer  possible  to  imprison 
a  man  without  showing  any  cause  whatever,  was  determined  by  the  Peti- 
tion; but  it  did  not  determine  whether  the  cause  shown  in  1629  was  one  "to 
which  they  might  make  answere  according  to  the  lawe."  So  in  1637  it  did 
not  determine  whether  ship  money  was  against  "the  lawes  and  free  cus- 
tomes  of  the  realme."  As  a  practical  measure  its  efficacy  was  limited  to 
the  grievances  complained  of;  the  general  statements  were  not  binding  on 
the  judges. 

The  blame  for  this  narrow  interpretation  of  the  Petition  has  been  laid 
upon  the  judges.  "They  refused,"  says  Gardiner,  "to  be  arbitrators  be- 
tween the  King  and  the  nation.  ...  All  that  had  been  gained  by  the 
Petition  of  Right  seemed  to  be  lost  in  an  instant."  ^^  But  had  not  the  judges 
done  all  that  they  could  do,  all  that  the  Commons'  lawyers  had  claimed 
they  could  do?  As  a  petition  of  right  (or,  for  that  matter,  as  a  private 
act),  the  Petition  could  cover  only  the  particular  grievances  enumerated. 
By  his  answer,  the  King  pronounced  that  these  particular  practices  were 
illegal. ^°°  But  before  giving  his  answer,  he  took  special  pains  to  find  out 
from  the  judges  whether  they,  as  well  as  the  Houses  of  Parliament,  con- 
sidered them  as  illegal. ^°^  The  Commons  had,  indeed,  been  forced  to  a  com- 
promise. Their  resolutions  had  stated  the  general  principles.  The  King's 
promise,  as  contained  in  his  message,  had  been  too  vague  to  assure  the  en- 
forcement of  those  principles.  So  as  a  middle  way  the  Commons  chose  to 
have  declared  illegal  specific  violations  of  those  principles.  In  this  way  they 
gained  temporary  relief  for  the  country.   But  that  was  not  all  they  had  done. 

*^  Ibid.,  999.  Sir  Robert  Berkley:  that  the  Petition  "only  confirmed  the  ancient  liberties."  Ibid., 
1109. 

In  his  ConUilulional  History,  Brodie  says  "our  ancestors  .  .  .  deemed  it  merely  a  confirmation  of 
the  acknowledged  law  of  the  land,  which  had  been  so  grossly  violated"   (1:475). 

9»  7:123. 

100  Dicey  says  of  the  Petition  that  it  was  a  "judicial  condemnation  of  claims  or  practices  on  the 
part  of  the  Crown  which  are  thereby  pronounced  illegal"  (p.  195,  n.l). 

101  In  1637  Judge  Crook  said:  "it  [the  Petition]  was  referred  to  my  lords  the  judges  (most  whereof 
are  here)  whether  this  law  doth  give  more  than  formerly  from  the  king.  And  we  were  all  of  opinion, 
that  this  law  did  give  no  more  than  what  was  formerly,  and  was  only  but  a  reviving  of  the  ancient  privi- 
leges of  the  subject;  it  added  no  more,  but  only  revived  what  was  formerly  granted."  State  Trials  3:1134. 


58  FRANCES  HELEN  RELF 

In  spite  of  the  fact  that  they  coiild  not  be  enforced,  it  is  the  general 
principles  eniinciated  in  the  Petition  which  make  it  a  mile  stone  in  the 
development  of  constitutional  government.  Dicey  makes  the  statement 
that  "there  is  no  difficulty,  and  there  is  often  very  little  gain,  in  declaring 
the  existence  of  a  right  to  personal  liberty.  The  true  diffictdty  is  to  se- 
cure enforcement."  For  this  reason  he  would  place  the  Habeas  Corpus 
Acts  above  the  Petition  of  Right. ^^^  xhis  is  certainly  to  depreciate  the 
work  of  the  men  of  1628  who  only  with  the  greatest  "difficulty"  succeeded 
in  placing  on  record  their  declaration  of  "the  existence  of  a  right."  For 
that  was  their  great  work,  that  they  succeeded  in  making  the  Petition  a 
permanent  record,  that  they  succeeded  in  having  that  record  spread  broad- 
cast over  the  coimtry.  It  performed  its  mission  by  educating  public 
opinion,  by  keeping  the  issue  clear  as  between  King  and  Parliament. 
Could  the  enforcing  laws  have  followed  if  it  had  not  paved  the  way? 

"I"  The  Law  of  the  Constitution  217. 


APPENDICES 


APPENDIX  A 

THE  COMMONS*  RESOLUTIONS,  WITH  NOTES  SHOWING 
THE  ALTERATIONS  MADE  IN  THE  HOUSE 

1.1  Resolved,  upon  Question,  That  no  free  Man-  ougit  to  be  committed,  or  de- 
tained in  Prison,  or  otherwise  restrained,^  by  the  Command  of  the  King,  or  the  Privy 
Council,*  or  any  other,  unless  some  Cause  of  the  Commitment,  Detainer,  or  Restraint 
be  expressed,^  for  which,  by  Law,  he  ought  to  be  committed,  detained,  or  restrained.^ 

2.  Resolved  upon  Question,  That  the  Writ  of  Habeas  Corpus''  miay  not  be  de- 
nied, but  ought  to  be  granted  to  every  Man'  that  is  committed,  or  detained  in  Prison,, 
or  otherwise  restrained,*  though  it  be  by  Command  of  the  King,  the  Privy  Coun- 
cil, or  any  other,  he  praying  the  same. 

3.  Resolved,  upon  Question,  That  if  a  free  Man  be  committed,  or  detained  in 
Prison,  or  otherwise  restrained,  by  the  Command  of  the  King,  the  Privy  Council, 
or  any  other,  no  Cause  of  such  Commitment,  Detainer,  or  Restraint,  being  expressed, 
for  which,  by  Law,  he  ought  to  be  com.mitted,  detained,  or  restrained,  and  the  same- 
be  returned  upon  an  Habeas  Corpus,  granted  for  the  said  Party,  that  then  he  ought 
to  be  delivered,  or  bailed. i° 

4."  Resolved,  upon  Question,  That  the  ancient  and  undoubted  Right  of  every 
free  Man  is,  that  he  hath  a  full  and  absolute  Property  in  his  Goods  and  Estate;"  and 

1  The  readings  on  the  first  three  resolutions  are  given  only  in  H,  2313:43-44. 

2  First  reading.  That  no  subject  being  a  free  man. 
Second  reading,  That  no  free  man  of  England. 

'  First,  committed  or  detained  in  prison. 
Second,  committed,  restrained,  or  detained  in  prison. 

*  First,  the  King  or  the  Council. 

6  First,  without  a  special  cause  of  the  Commitment  be  expressed. 

*  First,  besides  the  command. 

This  last  change  was  made  at  the  suggestion  of  Sir  Robert  Cotton  who  maintained  "that  no  com- 
mitment by  the  command  of  the  King,  the  Council,  or  any  other  [without  the  cause  being  expressed]  is 
a  just  cause  of  commitment." 

'  First,  A  Habeas  Corpus.  '  First,  every  free  man. 

*  "Sir  Nath.  Rich  would  have  otherwise  restrained  left  out,  because  if  a  man  be  committed  to  the 
custody  of  a  pursevant  or  any  other  man;  he  then  sav/  not  to  whom  the  writ  of  Habeas  Corpus  should  be 
directed,  which  used  to  be  directed  to  the  keeper  of  some  gaol." 

'"  First  reading.  //  upon  a  writ  of  Habeas  Corpus  granted  the  returne  of  the  cause  of  commitment 
or  detention  in  prison  or  other  restraint  of  liberty  of  the  person,  for  whom  the  said  warrant  is  granted, 
be  the  command  of  the  King,  or  the  Council,  or  any  other,  which  is  no  sufficient  cause  in  Law,  and  the 
same  be  returned  upon  a  Habeas  Corpus  granted  for  the  party  that  then  he  ought  to  be  delivered  or  bailed. 

11  The  fourth  resolution  was  the  first  decided  upon  in  Committee.  When,  however,  it  was  later 
brought  into  the  House  with  the  other  three  there  was  objection  made  to  it,  due  largely,  no  doubt,  to  the 
fact  that  its  phrasing  was  not  in  harmony  with  that  of  the  others.  After  some  debate  upon  the  wording, 
it  was  recommitted  and  later  reported  in  the  form  given  in  the  Journal.  Both  Borlase  (21  verso)  and 
Harl.  2313  (p.  7)  give  it  as  agreed  to  on  March  26.  The  later  account  gives  the  changes  suggested  on 
April  3  as  also  the  final  form. 

12  First  reading  March  26.  That  the  subject  of  England  hath  such  propriety  and  right  in  his  own  goods 
according  to  ancient  custom.     B,  21  verso. 

Mr.  Selden  (April  3).     That  instead  of  subject  of  England,  they  should  put  in  free  man.     H,  2313:56. 


62  APPENDIX 

that  no  Tax,  Tallage,  Loan,  Benevolence,  or  other  like  Charge,"  ought  to  be  com- 
manded or  levied  by  the  King,  or  any  of  his  Ministers,  without  common  Assent  by 
Act  of  Parliament.!*     CJ.  1:878-879. 

>»  First  reading  (March  26).     no  levy  nor  lax.    B.  21  verso. 

Second  reading  (March  26).     charge  added.    H,  2313:7. 

Debate  on  April  3.     H.  2313:56. 

Mr.  Selden.     To  leave  out  the  word  charge. 

Sir  Ed.  Coke.     To  put  in  the  word  loan. 

Sir  Na.  Rich,     loan  by  authority. 

Sir  Ra.  Hopton.     tax,  tallage,  or  coercive  loan. 
»«  First  reading  (March  26). 

■without  his  consent  in  Parliament.  H,  2313:7. 

without  Act  of  Parliament.     B.  21  verso. 

Debate  on  April  3.     H.  2313:56. 

Sir  Th.  Hobby.     To  leave  out  the  word  Parliament. 

Serj.  Hoskins.     without  his  own  consent  otherwise  than  by  Act  of  Parliament. 

Mr.  Pine,     otherwise  than  by  the  common  law  of  England,  or  an  Act  of  Parliament. 


APPENDIX  B 
THE  BILL  OF  RIGHT 

An  Act  for  the  better  securinge  of  every  free  man  touching  the  proprietie  of  his 
goods  and  libertie  of  his  person. 

Whereas  it  is  declared  and  enacted  by  Magna  Charta  that  noe  free  man  is  to  bee 
convicted,  destroyed,  etc.,  and  whereas  by  a  statute  made  in  E:L  called  de  tallagio 
non  concedendo:  And  whereas  by  the  Parliament  5  E:  3  and  14  E:  3  and  29  E:  3  etc., 
And  whereas  the  said  great  Charter  was  confirmed  and  that  the  other  laws  etc.  Be 
it  enacted  that  Magna  Charta  and  the  same  acts  of  explanation  and  other  the  Acts  bee 
putt  in  due  execution  and  that  all  judgments,  awards,  and  rules  given  are  [or]  to  be 
given  to  the  contrarie  shall  bee  voyd.  And  whereas  by  the  common  lawe  and  stat- 
utes it  appeares  that  noe  free  man  ought  to  bee  committed  by  Command  of  the  King, 
etc. ;  and  if  anie  free  man  bee  soe  committed  and  the  same  returned  uppon  an  habeas 
Corpus,  hee  ought  to  bee  delivered  or  bailed.  Bee  it  now  enacted  that  noe  free  man 
shall  bee  committed  by  the  command  of  the  King  or  the  privie  counsell  but  the  cause 
ought  to  bee  expressed  and  the  same  beeing  returned  uppon  an  habeas  Corpus,  hee 
shall  bee  delivered  or  bailed;  and  whereas  by  the  common  lawe  and  statutes  every  free 
man  hath  a  proprietie  in  his  goods  and  estate  as  no  taxe,  tallage,  etc..  Bee  it  now  enacted 
that  noe  taxe,  tallage,  loane,  shall  be  levied,  etc.  by  the  King  or  anie  minister  without 
act  of  parUament  and  that  none  bee  compelled  to  receive  anie  soldier  into  his  house 
against  his  will,  etc.  (M  137).i 

I  Because  of  the  nature  of  the  source,  it  is  impossible  to  say  whether  this  bill  is  the  first  form,  as 
presented  by  Sir  Edward  Coke  on  April  29,  or  its  form  after  it  was  altered  on  the  next  day  so  as  to  agree 
"as  neere  to  the  words  of  the  Stattutes  as  may  bee"  (B,  120  verso).  In  its  recitation  of  the  list  of  statutes 
it  is  both  incomplete  and  faulty.  The  incompleteness  is  seen  from  comparing  the  list  with  that  given 
by  Sir  Edward  in  his  report  on  the  29th  and  the  lists  given  in  Grosvenor  and  H,  5324  on  the  30th.  From 
the  same  sources  it  is  evident  that  29  E:3  should  read  28  E.  3.  These  errors  make  one  question  the  value 
of  the  whole  document. 


APPENDIX  C 

PROPOSED  ANSWERS  TO  THE  PETITION  OF  RIGHT 

To  which  petition 

Our  soveraign  Lord  the  Kinge,  in  full  parliament,  makes  this  answere 

Since  both  the  Lords  and  Commons  have  severally  with  dutiful!  respect  to  us,  de- 
clared ther  intentions,  not  to  lessen  our  just  powre  or  prerogative,  as  ther  Soveraign 

We  doe  as  freely  declare  our  clere  intention  noe  way  to  impeach  the  just  liberty 
of  our  subjects. 

And  therefore  this  right  understandinge  beinge  nowe  soe  happily  setled  betwene 
us  and  our  people,  which  we  trust  shall  ever  continue 

We  doe  freely  graunt,  that  this  petition,  shall  in  all  points  be  duly  observed,  as 
is  desired. 

Or  thus 

We  doe  grant  and  declare,  that  all  things  conteyned  in  this  petition  be  done  and 
observed,  accordinge  to  the  Lawes  and  ancient  coustomes  of  this  Land,  for  which  noe 
man  hereafter  shall  have  cause  to  complaine. 

Or  thus 

That  noe  man  shall  be  compelled  by  imprisonment  or  otherwise,  to  contribute 
to  Loans,  benevolence,  or  other  like  charges,  but  by  common  consent  in  parliament. 

That  when  any  man  shall  be  committed  or  otherwise  restreyned,  the  true  cause 
thereof  shall  be  expressed  uppon  the  committment,  or  at  least  uppon  the  habeas  Corpus, 
shalbe  retourned  or  signified  to  the  Judge,  to  the  ende  they  may  proceed  accordinge 
to  the  Lawe. 

That  noe  souldyers  or  marriners  gathered  together  for  the  Kings  service,  shall  be 
billetted  or  sojourned  but  in  place  convenient  and  neer  to  ther  Rendevous:  and  then 
but  for  such  time  as  shall  be  necessary  for  the  publicke  service,  during  which  time, 
theyr  enterteynment  shall  be  justly  payd  for,  and  themselves  orderly  governed. 

That  noe  Commission  of  Martiall  Lawe,  shall  be  awarded  or  exercised  in  times 
of  peace:  Nor  in  times  of  warr  or  preparations  for  warr,  but  uppon  such  only  as 
are  in  the  Kings  pay,  for  his  Armys  or  Fleets:  and  yet  they  shall  not  therby  be  exempt 
from  the  ordinary  Justice  of  the  Kingdom. 

Ail  thes  things,  the  Kinge  himself  will  religiously  observe,  accordinge  to  his  oath 
taken  at  his  coronation  And  will  cause  all  his  officers  and  Ministers  to  observe  the  same, 
according  to  the  Lawes  and  Statutes  of  the  Land. 

And  if  anything  have  been  done  to  the  contrary  it  shall  not  hereafter  be  drawen 
into  consequence  or  example. 

And  nowe  ther  beinge  a  Right  understanding  betwene  the  King  and  his  people: 
he  doth  assure  them  in  verbo  regio,  That  as  the  Lords  and  Commons  have  severally 
by  ther  Speakers,  expressed  ther  duitifull  respecte  to  him,  that  they  have  noe  inten- 
tion to  lessen  the  just  prerogative  of  ther  Soveraign:  Soe  the  Kinge  clerely  and  freely 
expresseth  himself,  that  neather  in  thes  particulars  nor  in  any  other  he  will  impeach 
the  just  libertys  of  his  subjects  (St.  P.  Dom.  Chas.  I,  vol.  105,  no.  95). 

To  which  petition 

Our  Soveraign  Lord  the  Kinge,  in  full  parliament  Aunswereth  thus 

1.  That  noe  man  shall  be  compelled,  to  make  or  yeld,  any  Loane,  Benevolence, 
or  such  like  charg,  but  by  common  consent  in  parliament. 


APPENDIX  65 

2.  That  noe  free  man  shall  be  committed,  or  deteyned  but  the  true  cause  therof 
shall  be  expressed  accordinge  to  the  Lawes. 

3.  That  noe  souldyers  or  mariners  shall  be  compelled  to  be  sojourned,  to  the 
burthen  of  the  people,  and  such  as  are  nowe  soe  sojourned  shall  be  speedily  removed: 
as  is  desired. 

4.  That  noe  Commissions  of  Martiall  Lawe  shall  be  executed  within  the  Land  in 
times  of  peace,  and  such  as  are  graunted  already,  shalbe  forthwith  revoked. 

5.  That  if  any  thing  hath  been  done  to  the  contrary  it  shall  not  hereafter  be 
drawen  into  consequence  or  example. 

6.  That  the  King  doth  hereby  declare,  that  all  his  officers  and  ministers  in  the 
things  aforesaid  shall  serve  him  according  to  the  lawes  and  statutes  of  this  Relme,  as 
they  tender  the  honor  of  the  King  and  the  prosperity  of  the  Kingdom. 

And  if  his  Majesty  shall  soe  thinke  fitt;  eather  by  himself:  or  by  my  Lord 
Keeper  he  may  be  pleased 

To  thanke  both  houses,  for  ther  respectfull  carriage  towards  him;  that  by  ther 
severall  Speakers,  they  have  expressed  themselves,  that  they  have  noe  intention  to 
lessen  his  Majestys  just  power  or  prerogative. 

And  that  his  Majesty  againe  on  his  part  doth  acknowledge  that  he  hath  noe 
powre  but  from  God;  nor  will  extend  his  prerogative  beyond  the  just  bounds  therof, 
nor  use  it  to  other  purpose  but  for  the  good  government,  protection  and  safety  of 
his  people. 

To  take  Knowledge,  with  approbation,  of  the  moderation  of  both  houses,  that 
they  have  not  in  this  parliament,  fallen  uppon  personal  questions,  which  might  have 
diverted  them  from  matters  of  realitye. 

And  that  his  Majesty,  taking  Knowledge,  that  in  all  times  somethings  doe  and 
will  happen  which  may  be  amended,  he  will  take  such  Knowledge  of  things  amiss, 
for  the  future;  that  his  people  shall  discerne  his  care  to  be  such  for  the  governing  of 
the  great  affaires  of  the  Kingdome  as  they  shall  have  noe  just  cause  of  complaint. 

And  that  his  Majesty  will  manifest  his  desire  unto  them  all:  That  ther  being 
nowe  a  right  understanding  betwene  him  and  his  people,  which  may  remove  all  jel- 
ousy  and  misundertakings  on  eather  side 

They  will  confide  on  him  and  trust  to  his  Justice,  and  providence  for  ther  safetye 
and  prosperitye:  As  he  will  repose  himself  with  confidence  uppon  ther  loyalty  and 
Loves;  and  shall  willingly  doe  nothing  but  what  shall  tend  to  the  honor,  safetye,  and 
happiness,  of  the  Church  and  Commonwealth  {Ibid.,  no.  97). 

To  which  petition  preferred  to  the  Lords  and  Commons  our  soveraign  Lord  the 
King,  in  full  parliament,  awnswereth  thus 

L  That  noe  man  shall  be  compelled  by  imprisonment  or  other  restraint,  to  make 
or  yeld  any  guift,  loan,  Benevolence  or  other  like  taxe  or  charge,  but  by  common 
consent  of  parliament:  nor  shall  otherwise  be  molested  or  disquieted  concerning  the 
same  or  for  refusall  thereof. 

2.  That  noe  man  shall  be  imprisoned  or  restreined  by  us  or  our  privye  counsell, 
for  any  cause  which,  in  our  conscience,  doth  not  concerne  the  publike  good  and  safety 
of  us  and  our  people,  and  in  all  cases  of  this  nature,  we  shall  readily  and  really  expresse 
the  true  cause  of  the  committment,  as  soon  as  with  safety  to  the  cause  it  is  fitt  to  be 
disclosed  and  expressed  and  that  in  all  causes  criminall  of  ordinary  Jurisdiction,  our 
Judges  shall  proceed  to  the  deliverance  or  baylement  of  the  prisoner,  according  to  the 
known  and  ordinary  rules  of  the  Lawes  of  the  land,  and  in  cases  of  extraordinary 
nature  and  consequence  (when  they  shall  happen)  we  will  proceed  with  all  conve- 


66  APPENDIX 

nient  expedition,  and  will  never  use  our  powre  but   with   that   moderation  as  shall 
be  for  the  publike  good  and  safety  of  our  people. 

3.  That  the  souldyers  and  mariners  nowe  billetted  in  severall  places,  shall  with 
all  speed  be  disposed  of  and  removed  as  is  desired  And  from  henceforth  noe  souldyers 
or  marriners  shall  be  soe  billetted,  but  in  convenient  places  neer  the  ports,  wher  an 
Army  or  Fleet  is  to  sett  forth  or  retourn  holme  for  the  publike  service,  and  for  such 
time  only  as  the  necessity  of  the  service  shall  require;  for  which  reasonable  allowaunce 
shalbe  payd;  during  which  times  and  uppon  which  occasions,  they  shall  bee  soe  or- 
dred  and  governed,  as  that  hereafter  they  shall  be  noe  burthen  or  grievaunce  to  the 
people. 

4.  That  the  Commissions  for  Martiall  Lawe  complained  of  shall  be,  forthwith 
revoked  and  adnuUed;  and  noe  Commissions  of  like  nature  shall  issue  forth  hereafter 
to  be  executed  within  the  land  in  times  of  peace,  but  for  the  necessary  discipline  of 
the  souldj'ers  and  marriners  which  shall  be  pressed  and  gathered  togeather  for  the 
Kinges  service,  and  to  be  exercised  uppon  them  only;  and  yet  shall  noe  way  extend 
to  priviledge  them  from  the  ordinarye  Justice  of  the  Kingdome. 

5.  That  if  any  thing  have  been  done  to  the  contrarye,  to  the  prejudice  of  the 
people  in  any  of  thes  things,  it  shall  not  be  drawn  into  consequence  or  example. 

6.  And  lastly  his  Majesty  is  gratiously  pleased  and  he  doth  hereby  declare  his 
royall  pleasure  to  be,  that  all  his  officers  and  ministers  in  all  the  things  aforesaid,  shall 
serve  him  according  to  the  Lawes  and  customes  of  this  Relme,  as  they  tender  the 
honor  of  the  Kinge,  and  prosperity  of  the  Kingdome  {Ibid.,  no.  98). 

To  which  Petition  preferred  by  the  Lords  and  Commons 

Our  Soveraigne  Lord  the  Kinge  in  full  parliament: 
Awnswereth  thus 

1.  That  noe  man  hereafter  shalbe  compelled  by  imprisonment  or  other  restreint 
to  make  or  yeld  any  guift,  Loan,  Benevolence,  or  such  like  taxe  or  charge;  but  by 
common  consent  in  parliament  And  that  none  shall  be  called  to  make  such  oath,  or  to 
give  attendaunce,  or  be  confined,  or  otherwise  molested  or  disquieted,  concerning  the 
same,  or  for  refusall  therof. 

2.  That  noe  free  man  shall  be  committed  or  deteyned  in  prison,  but  accordinge 
to  the  Lawes,  and  customes  of  the  Kingdom. 

3.  That  the  souldyers  and  mariners  nowe  billetted  and  sojourned  in  severall 
parts  and  places,  shall  forthwith  be  removed  and  discharged,  and  the  people  shall  not 
have  cause  of  greivaunce  in  this  particuler  in  time  to  come. 

4.  That  the  Commissions  alreadye  graunted  for  martiall  lawe,  to  be  executed 
within  the  land  shall  forthwith  be  revoked  and  adnuUed;  And  noe  Commissions  of 
like  nature  shall  issue  forth  hereafter,  to  be  exercised  within  the  land  in  times  of  peace 
but  uppon  such  as  are  in  his  Majestys  pay  and  they  not  to  be  therby  exempt  from 
ordinary  Justice. 

5.  That  if  any  thing  hath  been  done  to  the  contrary,  to  the  prejudice  of  the  people 
in  any  of  thes  things,  it  shall  not  be  drawne  into  consequence  or  example. 

6.  And  lastly  his  gratious  will  and  pleasure  is,  and  he  doth  hereby  declare  his 
royall  pleasure  to  be,  that  all  his  officers  and  ministers,  in  all  the  things  aforesaid 
shall  serve  him,  accordinge  to  the  Laws  and  coustomes  of  this  Relme,  as  they 
tended  the  honor  of  the  King  and  the  prosperitye  of  the  Kingdome. 


APPENDIX  67 

{  On  dorse]  The  King  willeth  that  right  be  done  according  to  the  lawes  and  cous- 
tomes  of  the  Relme.  And  that  the  Statutes  be  put  in  due  execution 
that  the  subjects  may  have  noe  excuse  to  complaine  of  any  wrong  or 
oppressions  contrary  to  ther  just  rights  and  libertyes. 
To  the  prosecution  wherof  he  holds  himself  in  Justice  obliged,  as  of  his 
prerogative. 

I  Endorsed]    Awnswere  to  the  petition  by  the  King  in  parliament  {Ibid.,  no.  99). 


APPENDIX  D 

BIBLIOGRAPHICAL  NOTES  FOR  THE  PARLIAMENT  OF  1628 

I.     Sources 
A.     Documents 

(1).  Petition  of  Right.     Statutes  of  the  Realm,  6:23-24. 
(2).  Drafts  of  a  first  answer.     St.  P.Dom.  cv.,  95,  97,  98,  99. 

B.     Records  of  Proceedings  and  Debates 

1.     OFFICIAL 

Journals  of  the  House  of  Lords. 

This  was  the  official  record  not  only  of  what  happened  in  the  upper  House  but 
of  all  matters  which  concerned  the  Parliament  as  a  whole.  For  this  subject  its  par- 
ticular value  is  to  be  found  in  the  full  accounts  it  gives  of  the  conferences  between 
the  Houses. 

2.    QUASI-OFFICIAL 

(1).  Journals  of  the  House  of  Commons. 

The  journal  kept  by  the  clerk  of  the  lower  House  was  not  at  that  time  deemed 
oflficial.     As  printed  it  gives  the  appearance  of  being  a  much  more  formal  document 
than  it  reaUy  was.     The  original  manuscript  indicates  at  a  glance  what  the  journal 
was,  the  fragmentary  notes  of  the  clerk  jotted  down  during  the  proceedings.^ 
(2).  Separate  speeches  and  reports  given  out  by  the  clerk. 

It  was  the  custom  at  that  time  for  the  clerk  to  sell  to  the  members  copies  of  the 
King's  messages,  and  of  formal  reports  or  speeches  when  so  ordered  by  the  House. 
These  copies,  and  copies  of  copies,  are  still  to  be  found  in  great  numbers,  separately 
and  in  collections.  In  the  collections  are  also  copies  of  speeches  which  were  doubt- 
less given  out  by  the  members  themselves.  It  is  impossible  to  draw  a  sharp  line  be- 
tween the  two.  All  the  originals  from  which  the  clerk  made  copies  were  undoubtedly 
preserved  at  the  time  by  him,  but  only  the  Journals  have  come  down  to  us.  The 
Journal  itself  is  therefore  the  only  clue  as  to  which  were  official  separates.  It  would, 
I  think,  be  safe  to  exclude  from  that  list  all  speeches  by  members  made  in  the  course 
of  debate.  There  are  many  of  these  collections  of  speeches  in  manuscript.  The 
only  one  in  print  is  Ephemeris  Parliamenlaria,  edited  by  Thomas  Fuller,  and  printed 
in  1654. 

3.    UNOFFICIAL 

a.     Public 

During  this  period  the  circulation  of  parUamentary  news  was  officially  forbidden; 

yet,  so    slack  was  the  enforcement  of  this  command  that  Httle  happened  within  the 

Houses  that  was  not  immediately  known  by  the  Court  on  the  one  hand,  and  the  Country 

on  the  other.'^     But  such  information  was  necessarily  circulated  in  manuscript.     All 

>  For  a  full  account  of  the  nature  of  the  Commons'  Journal,  see  the  introduction  to  Notestein  and 
Relf,  Commons  Debates  16Z9. 

*  When  the  King's  propositions  for  supply  were  brought  into  the  House  and  it  was  decided  that 
every  man  should  have  a  copy,  Secretary  Coke  moved  that  none  be  distributed  outside  of  the  House.  There 
was  considerable  opposition  to  this  motion  by  members  who  wished  to  consult  with  their  constituents. 
13,   19  pwio-20;  H,  2313:3;  N,  7. 


APPENDIX  69 

that  were  printed  at  the  time  were  a  few  separates  authorized  by  the  King.'  Besides 
the  many  copies  of  separates,  there  are  to  be  found  in  manuscript  copies  of  proceed- 
ings which  bear  a  marked  resemblance  to  the  news-letter  of  the  Civil  War  period. 
Gf  these  news-letters  there  are  two,  the   True  Relation  and  the  Borlase  account. 

(1)  The  True  Relation. 

This  news-letter  is  made  up  of  a  combination  of  separates,  both  official  and  pri- 
vate, and  of  narrative  consisting  mostly  of  debate  and  motions.  The  many  copies 
of  it  which  are  to  be  found  differ  from  each  other  both  in  the  number  of  separates 
and  in  the  fullness  of  the  narrative,  suggesting  that  its  completest  form  was  the  result 
of  a  gradual  accumulation  from  different  sources.  The  final  compilation  could  not 
have  been  made  until  after  the  Session  was  over,  though  probably  from  fragments 
given  out  before.*  Of  the  many  copies  I  have  attempted  to  make  no  complete  list, 
nor  have  I  tried  to  make  a  classification.  It  is  sufficient  to  note  some  of  the  copies 
of  the  most  complete  form,  all  of  which  are  identical  except  for  copyists'  errors. 
One  of  them  is  to  be  found  in  the  Cambridge  Library  (Rawl.  A,  78) ;  another  in  the 
Petyt  Collection  in  the  Inner  Temple  (537:26);  a  third  belongs  to  the  Marquis  of 
Bute;  a  fourth  to  the  Massachusetts  Historical  Society;  and  a  fifth  is  among  the 
Harleian  MSS  (4771).  This  last  is  not  complete,  wanting  any  narrative  after  May 
26.  There  is  no  good  copy  of  the  True  Relation  for  this  Session  in  print.  That  in 
Rushworth's  Collections  (vol.  I)^  is  very  fragmentary.  The  editor  of  the  old  Parlia- 
mentary History^  has  used  Rushworth  as  a  basis  and  added  to  it  from  any  separates 
he  could  pick  up,  some  from  Ephemeris  Parliamentaria,  some  from  a  manuscript 
which  had  originally  belonged  to  a  member  of  this  Parliament,''  some  from  a  collection 
of  printed  pamphlets.*  For  the  debate  he  obtained  additional  material  for  June  5 
and  7  from  a  manuscript  in  the  Harleian  Collection. 

The  manuscript  which  I  have  used  is  that  belonging  to  the  Massachusetts  His- 
torical Society.  It  has  been  in  their  possession  since  1791,  when  it  was  presented  to 
them  by  Thomas  Wallcut,  who  bought  it  in  the  previous  year  at  the  sale  of  L.  Byles. 
To  judge  from  the  handwriting  it  is  a  contemporary  copy.  More  than  that  of  its 
history  is  unknown.  Probably  it  was  brought  to  America  by  one  of  the  early  mem- 
bers of  the  Massachusetts  Bay  Company.  If  so,  it  becomes  an  interesting  illustra- 
tion of  the  close  connection  between  the  history  of  our  own  country  and  that  of  the 
early  Parliaments  of  Charles  I. 

(2)  The  Boriase  MS  (Stowe  366). 

This  is  another  account  of  the  Session  which  was  written  for  circulation.  It 
has  every  appearance  of  having  been  a  daily  news-letter.  The  manuscript  is  in  the 
handwriting  peculiar  to  the  clerks  of  that  time,  it  changes  from  time  to  time,  as  often 
as  not  in  the  middle  of  a  day.  Scattered  through  the  text  are  little  notes  of  descrip- 
tion or  explanation  which  go  far  to  prove  that  the  letters  were  written  for  circulation 

«  The  editor  of  the  old  ParUamenlry  History  refers  to  a  collection  of  printed  pamphlets  made  by 
Sir  John  Goodrich  (7:403).     A  few  such  separates  may  be  found  in  the  Bodleian  Library. 

*  For  a  fall  account  of  the  nature  of  the  True  Relation  see  the  introduction  to  Notestein  and  Relf, 
Commons  Debates  1629.  For  that  Session  a  detailed  comparison  was  made  of  all  the  copies  in  order  not  only  to 
give  the  best  possible  text  but  also  in  the  hope  of  discovering  their  relation  to  each  other,  and  the  character 
of  the  whole.  The  dififerent  copies  vary  as  much  in  their  titles  as  in  any  other  particular.  We  chose 
True  Relation  as  being  the  most  distinctive  of  the  many  given.  Coming  then  to  the  same  kind  of  account 
for  the  earlier  Session,  and  finding  again  a  great  diversity  of  titles,  it  seems  the  natural  thing  to  refer  to 
them,  too,  as  the  True  Relation. 

s  Edition  of  1721. 

•This  collection  of  source  material  was  published  in  1751.  The  part  pertaining  to  this  Session  is 
to  be  found  in  volumes  vii  and  viii. 

■  Sir  John  Napier  MS.  '  See  above  note  3. 


70  APPENDIX 

outside  of  the  House.  This  is  confirmed  by  the  style  which  is  much  more  entertain- 
ing than  that  of  the  private  diaries;  the  humorous  incidents  are  made  the  most  of.* 
There  can  be  no  doubt  that  it  was  issued  daily;  for,  though  the  leaves  are  now  care- 
fully pressed  out  and  bound  together,  one  can  easily  see  that  those  for  each  day  had 
been  folded  together,  once  each  way,  and  then  the  date  written  across  the  outside. 
The  grime  on  the  outside  indicates  either  that  they  were  handled  a  great  deal,  or  else 
not  bound  for  some  time  after.  Bound  with  the  debates  are  some  separates.  They 
are  never  incorporated  in  the  text  as  in  the  True  Relation,  a  fact  which  brings  out  the 
most  marked  difference  between  these  two  accounts  both  of  which  were  written  for 
circulation.  The  True  Relation  was  compiled  after  the  separates  were  available; 
this  was  issued  daily,  and  the  separates  sent  later  as  they  were  obtained.  The  Borlase 
separates  are  not  always  on  the  same  size  paper  as  the  daily  proceedings,  and  each  is 
folded  and  tabulated  by  itself.  There  is  no  means  of  telling  how  wide  a  circulation 
this  news-letter  had.  The  name  on  the  title  page  of  this  copy,  William  Borlase, 
Knight,  indicates  only  the  owner  of  the  bound  copy.  He  was  a  member  of  the  Par- 
liament of  1628.  The  only  other  copy  of  which  I  know  is  also  in  the  Stowe  Collec- 
tion (367).  It  is  in  one  handwriting  throughout  and  was  evidently  made  after  the 
end  of  the  Session.  It  appears  to  be  a  copy  of  the  Borlase  MS  made,  perhaps,  after 
that  had  been  bound. 

b.     Private 

From  what  is  known  of  the  Parliaments  of  this  time,  it  is  probable  that  notes 
of  the  proceedings  were  taken  by  many  of  the  members.  It  can  not  be  supposed 
that  nearly  all  of  those  written  during  this  Session  have  yet  been  brought  to  light. 
There  are  at  present  only  four  of  which  I  know. 

(1)  Sir   Richard   Grosvenor.     Notes  of   Proceedings    (Library    of    Trinity    College, 
DubHn). 

As  it  is  now  preserved  this  diary  consists  of  four  closely  written  note-books,  the 
contents  of  any  one  of  which  would  fill  a  hundred  printed  pages  of  ordinary  size. 
They  cover  the  proceedings  from  April  18  to  the  close  of  the  Session.  There  was, 
undoubtedly,  a  first  book  which  is  now  missing. i°  That  the  diary  is  by  Sir  Richard 
Grosvenor,  there  can  be  no  doubt.  The  writer's  frequent  reference  to  the  committees 
of  which  he  was  a  member,  as  well  as  the  scratchy  notes  he  makes  of  his  own  speeches, 
places  this  beyond  question.  This  diary,  more  than  any  other  account  of  the  Ses- 
sion, gives  one  the  proper  sense  of  proportion.  It  deals  not  alone  with  the  debates 
on  "the  great  question,"  but  with  the  other  matters  too,  which  were  the  subject  of 
discussion.  Considering  the  number  of  speeches  recorded  it  is  the  fullest  account. 
But  a  comparison  with  the  other  accounts  proves  that  even  it  was  not  complete. 

(2)  Notes,  by  {Harl.  2313,  5324). 

These  are  two  finely  written  note-books;  the  first  covers  from  March  26  through 
April  28;  the  second  begins  with  April  30,  gives  every  day's  proceedings  through 

•  On  May  31,  when  the  Commons  had  been  denied  their  Whitsuntide  recess  in  the  hopes  that  they 
would  finish  their  work  on  the  bill  of  subsidy,  there  occurred  a  debate  on  the  question  whether  Oxford 
or  Cambridge  should  be  named  first  in  the  bill.  Even  the  most  prominent  and  serious  minded  of  the 
members  acted  like  schoolboys  deprived  of  a  holiday.  This  debate  is  recorded  only  by  this  writer  and 
Grosvenor.  A  comparison  of  the  two  accounts  is  sufficient  to  make  one  realize  the  news-writer's  ability 
in  working  up  farce-comedy. 

••At  the  beginning  of  the  first  book  that  we  have,  the  author  has  written  "2d  booke."  The  loss 
of  the  volume  occurred  previously  to  1745  when  the  books  were  catalogued  as  they  are  now.  They  are 
in  one  of  the  presses  which  contain  Archbishop  Ussher's  manuscripts,  and  so  probably  belonged  to  him. 
In  the  Lije  of  Archbishop  Ussher,  published  by  Richard  Parr  in  1686,  there  is  given  an  account  of  the  dis- 
posal of  all  of  his  manuscripts  which  were  not  in  his  own  handwriting.      After  the  death  of  the  Archbishop 


APPENDIX  71 

May  24,  and  then,  after  a  few  intervening  blank  pages,  gives  a  fragment  for  June  4." 
The  only  possible  clue  to  authorship  in  the  dairy  itself,  is  in  the  handwriting.  The 
only  external  evidence  is  in  the  name  plate  to  be  found  in  the  front  of  each  book. 
This  reads:  "John  Duke  of  Newcastle,  Marquis  and  Earle  of  Clare,  Baron  Haughton 
of  Haughton,  and  Knight  of  the  Most  Noble  Order  of  the  Garter."  The  titles  be- 
long to  the  18th  century  family  of  Pelham-HoUes.  There  were  both  a  Pelham  and  a 
Holies  in  this  ParUament.  One  would  Hke  to  think  that  the  diary  was  written  by 
the  latter,  the  Denzil  Holies  who  in  the  next  Session  made  himself  so  well  known. 
The  handwriting  bears  out  this  supposition  to  some  extent.  The  writer,  whoever 
he  was,  had  the  rare  talent  of  putting  the  gist  of  things  into  a  few  words.  His  nar- 
rative is  especially  valuable  for  committee  meetings,  for  some  of  which  he  gives  the 
only  account. 

(3)  Nicholas's  Notes.     St.P.Dom.  Chas.  I.  xcvii. 

This  diary  covers  practically  the  whole  Session,  but  for  the  last  month  it  is  not 
as  satisfactory.  Even  for  the  earlier  part  it  is  far  from  complete.  The  writer  seems 
to  have  noted  down  only  what  especially  interested  him.  Sir  Edward  Nicholas  was 
a  prominent  member  of  the  court  party. 

(4)  Lowther's  Notes.     Hist.  MSS  Comn.,  13th  Rep.App.7,  pp.  33-60. 

These  notes  cover  but  a  short  part  of  this  Session,  from  June  4  to  the  end,  but 
for  those  days  are  quite  full.  Their  chief  contribution  is  the  Hght  they  throw  upon  the 
much  disputed  question  of  the  relation  of  Tonnage  and  Poundage  to  the  Petition  of 
Right.  The  editor  of  the  Report,  J.  J.  Cartwright,  has  worked  out  the  authorship 
from  internal  evidence.  From  a  comparison  of  an  entry  for  June  1,  1626,  with  an 
entry  for  the  same  date  in  the  Commons'  Journal  he  has  proved  that  the  writer  of 
the  Notes  was  a  "Mr.  Lowther."  But  whether  it  was  John  or  Richard  it  is  impos- 
sible to  say.     Neither  one  was  a  conspicuous  member  of  this  Parhament. 

C     Contemporary  Letters 

(1)  Sir  Francis  Nethersole  to  Elizabeth,  Queen  of  Bohemia. 

Cal.St.P.Dom.  Charles  1.  1628-1629. 
Nethersole  was  one  of  the  King's  most  ardent  supporters  in  the  lower  House. 
His  letters  contain  many  valuable  side-lights  on  the  proceedings. 

(2)  Allured  to  Chamberiain,  June  6.     Rushworth  I,  609-610. 

This  member's  letter  gives  a  vivid  picture  of  the  exciting  events  of  June  5. 

(3)  Court  and  Times  of  Charles  First,  2  vols.  London  1848. 

This  work  is  made  up  of  contemporary  letters.  The  first  volume  contains  many 
that  have  a  bearing  on  this  Session.  Perhaps  their  greatest  contribution  lies  in  this, — 
that  they  reveal  what  was  known  by  the  general  public  at  the  time. 

(4)  Salvetti  Correspondence.     Hist.  MSS    Comn.  11th  Rep.App.l. 

These  are  the  letters  of  the  representative  of  the  Grand  Duke  of  Tuscany  at 
the  EngHsh  Court.  They  are  not  important  for  the  information  they  contain  for 
they  treat  but  briefly  of  the  Parliamentary  proceedings.  Their  interest  lies  chiefly 
in  the  continental  view-point  of  the  writer  as  applied  to  the  subjects  which  make  up 
the  Petition  of  Right. 

in  1655.  they  were  bought  from  his  daughter  for  the  University  of  Dublin.  Awaiting  the  building  of  a  new 
Hall,  they  were  kept  at  the  Castle  of  Dublin,  "where,  the  rooms  where  this  treasure  was  kept  being  left 
open,  .  .  .  most  of  the  best  manuscripts  were  stolen  away."  This  probably  accounts  for  our  missing  volume. 
'1  The  books  are  bound  at  the  top  instead  of  at  the  side  and  the  author  has  written  from  both  ends 
towards  the  middle  of  the  book.  Sometimes  he  fills  both  sides  of  the  leaf,  sometimes  only  one,  leaving 
the  other  to  be  filled  after  turning  the  book  over  and  beginning  at  the  back.  This  confusion  was  not  worked 
out  by  whoever  catalogued  the  books  for  the  British  Museum,  with  results  that  are  very  misleading  to 
the  student.     In  the  catalogue  the  first  book  is  dated  correctly,  but  the  second  is  put  under  the  year  1640. 


72  APPENDIX 

II.     Secondary  Works 

A.     Predecessors  of  Gardiner 

It  would  be  useless  to  enumerate  all  of  these  separately  for,  with  three  excep- 
tions, they  have  been  entirely  superseded  by  Gardiner.  They  have  based  their 
work  on  the  collections  of  source  material  published  in  Rushworth's  Collections  and 
the  old  Parliamentary  History,  which  meant  little  more  than  a  poor  copy  of  the  True 
Relation.     This,  alone,  is  reason  enough  for  excluding  them. 

(1)  John  Forster,  Sir  John  Eliot,  2  vols.  2  ed.  London  1872.  (1  ed.  1864). 

In  this  work,  Forster  devotes  considerable  space  to  the  Parliament  of  1628.  In 
addition  to  the  regular  sources  he  had  access  to  Nethersole's  letters  and  the  Port 
Eliot  MSS.  This  collection  contains  all  of  Sir  John  EHot's  own  manuscripts.  For 
this  Session  there  are  seven  speeches  by  Eliot,  a  long  report  which  has  no  bearing  on 
the  Petition  of  Right,  and  brief  memoranda  by  EHot.  Though  much  fuller  than  those 
given  anywhere  else  these  copies  of  Eliot's  speeches  are  not  as  valuable  as  Forster 
would  have  us  believe.  In  commenting  on  the  May  23  speech,  Gardiner  pointed 
out  that,  though  in  the  main  the  speeches  are  correct,  they  "were  subject  to  some 
manipulation. "12  They  do,  indeed,  give  evidence  of  having  been  written  up  some 
time  after  the  speech  had  been  deHvered.  In  the  light  of  the  more  abundant  material 
which  is  now  accessible,  they  must  be  valued  as  contributions  to  the  17th  century 
oratory  rather  than  as  an  actual  part  of  the  debates.  Of  more  importance  are  Eliot's 
brief  memoranda  with  which  Forster  has  made  us  acquainted.  Forster's  great  con- 
tribution, however,  lies  not  in  the  new  material  he  offers,  but  in  his  use  of  the  old.  He 
was  able,  to  a  remarkable  degree,  to  enter  into  the  spirit  of  the  time  and  of  the  men. 
With  that  for  a  background,  he  presents  a  vivid  and  inspiring  picture  of  stirring  events. 
But  it  is  just  here  that  one  must  be  on  his  guard  in  reading  Forster,  for  his  imagina- 
tion lured  him  on  to  fill  in  the  gaps  due  to  his  all  too  scanty  information. 

(2)  Henry  Hallam,  The  Constitutional  History  of  England  from  the  accession  of 
Henry  VII  to  the  death  of  George  II.     2  vols.  5  ed.  1846  (1st  ed.  1827). 

This  constitutional  history  is  carefully  worked  out  from  all  the  printed  and  manu- 
script sources  then  available.  Besides  the  meagerness  of  the  material,  the  book 
suffers  from  the  author's  acceptance  of  the  misconceptions  regarding  Magna  Carta 
prevalent  at  that  time. 

(3)  George  Brodie,  A  Constitutional  History  of  the  British  Empire  from  the  Acces- 
sion of  Charles  I  to  the  Restoration:  .  .  .  including  a  particular  examina- 
tion of  Mr.  Hume's  statements  relative  to  the  character  of  the  English 
government.     3  vols.,  new  edition  1866. 

Alone  among  the  historians  of  his  time,  this  writer  made  a  sincere  effort  to  find 
out  the  contemporary  opinion  regarding  the  nature  of  the  Petition  of  Right. 

B.     Samuel  Raws  on  Gardiner 

History  of  England  1603-1642.     10  vols.     New  Impression,  1901. 

In  his  history,  Gardiner  has  devoted  two  chapters  to  the  proceedings  of  this 
Session  of  Parliament.  In  source  material,  Gardiner's  main  advantage  over  his  pred- 
ecessors lay  in  his  having  access  to  two  private  diaries  and  to  a  copy  of  the  best  form 
of  the  True  Relation.  The  diaries  he  used  were  Nicholas's  Notes  and  the  first  volume 
of  the  Harleian.^^     From  the  small  use  that  he  made  of  the  latter,  one  would  judge 

"  VI,  285  note. 

"  It  was  probably  due  to  the  poor  cataloguing  that  Gardiner  missed  the  second  volume. 


APPENDIX  73 

that  he  did  not  value  it  as  highly  as  it  deserves.  For  the  True  Relation  he  used  the 
Harleian  copy  (4771),  which  failed  him  entirely  for  the  last  month.  Nowhere,  either 
by  comment  or  otherwise,  does  Gardiner  show  that  he  had  any  realization  of  the  nature 
of  the  manuscript  he  was  using. i*  He  seems  always  to  have  thought  of  it  as  an  orig- 
inal instead  as  of  a  copy,  no  one  knows  how  many  times  removed  from  the  original, 
and  so  necessarily  full  of  copyists'  errors.  Some  of  his  direct  quotations  reveal  these 
imperfections.  A  common  error  in  all  copied  manuscripts  is  an  omission  due  to  the 
repetition  of  a  word  or  phrase.  In  the  Bill  of  Right,  as  given  by  Gardiner,  between 
the  word  bailed  and  its  repetition  there  are  left  out  forty-three  words.'*  Again,  in  a 
speech  which  he  gives  in  the  text,'®  he  has  was  able  where  another  copy''  has  should 
not  be  able,  a  reading  which,  from  both  the  context  and  agreement  with  independent 
sources,  is  undoubtedly  the  correct  one.  But  about  this  same  speech  Gardiner  has 
made  a  much  more  serious  blunder.  In  most  of  the  manuscripts  the  names  of  the 
speakers  are  given  only  in  the  margin.  Unless  the  copyist  was  alert  he  sometimes 
omitted  a  name.  Then  the  speech  appeared  to  be  but  an  added  paragraph  to  the  one 
preceding.  The  name  of  Sir  Humphrey  May,  one  of  the  King's  firmest  supporters, 
was  omitted  from  Gardiner's  manuscript  at  this  point.  As  a  result  Gardiner  attrib- 
utes to  Wentworth,  opinions  which  serve  to  line  him  up  with  the  court  party.'' 
Considered  as  a  narrative  history,  one  can  find  but  little  to  criticise  in  Gardiner's 
work.  He  is  a  model  of  accuracy.  Fuller  information  serves  rather  to  amplify  than 
to  correct.  But  after  reading  his  account  one  feels  lost  in  a  mass  of  detail.  There 
is  no  summing  up  or  explanation  of  events.  One  can  not  but  admire  the  clever  way 
in  which  he  often  evades  the  direct  issue.  Since  he  was  a  writer  of  narrative  history, 
one  can  not  demand  that  he  should  have  settled  all  the  constitutional  questions  in- 
volved in  the  series  of  events.  But  had  he  himself  been  more  conscious  of  the  ques- 
tions it  would  have  affected  his  selection  of  facts.  In  reading  the  sources  primarily 
for  the  events  of  the  day,  it  is  extremely  difficult  to  get  below  the  surface.  Until  the 
problem  presents  itself,  one  is  apt  to  miss  the  word  here  and  there  that  is  the  key  to 
its  solution.  Only  in  this  way  can  one  account  for  Gardiner's  having  neglected  en- 
tirely the  investigation  of  the  judges'  decision  in  the  'late  habeas  corpus  case,'  or 
the  important  debates  which  resulted  in  the  change  from  a  bill  with  a  penalty  to  one 
that  was  only  explanatory. 

C.     Writers  since  Gardiner 

Since  Gardiner  wrote  his  history  no  detailed  study  has  been  made  of  either  the 
Petition  of  Right  or  of  this  Session  of  Parliament.  It  has  been  touched  upon  in  brief 
narrative  history,  in  text  books  of  constitutional  history,  and  in  biographies.  But  In 
no  case  has  any  attempt  been  made  to  get  behind  Gardiner. 

»*  There  is  no  reason  why  Gardiner  should  not  have  known  the  character  of  the  manuscript.  Even 
if  the  many  copies  in  the  Harleian  Collection  had  not  suggested  it  to  him,  Bruce's  article  on  the  different 
copies  of  the  True  Relation  for  1629  (Archaeologia  xxxviii,  237-245)  should  have  called  his  attention  to 
the  fact. 

i«  VI,  265  note. 

16  Ibid.,  285-286. 

"  Mass.  MS. 

18  Gardiner  made  even  greater  use  of  this  speech  in  an  article  entitled  The  Alleged  Apostacy  of  Went- 
worth {Lord  Strafford)  (Quarterly  Review  for  April,  1874,  pp.  230-240).  It  becomes  there  the  culmination 
of  his  whole  argument.  "To  quote  Wentworth's  own  words,  as  we  have  done,"  he  states,  "is  to  show  that 
the  principles  which  he  defended  were  his  own,  the  dangers  against  which  he  wished  to  provide  were  seen 
in  their  entirety  by  no  eye  but  his,  and  the  remedies  which  he  recommended  were  also  his  own.  He  could 
not  therefore  have  apostasized  from  opinions  which  he  only  very  partially  shared"  (p.  239). 


74  APPENDIX 

BOOKS    TO    WHICH    REFERENCE  HAS  BEEN   MADE  IN   THE    TEXT    OR    FOOTNOTES 

ARE  AS  FOLLOWS: 

Anson,  Sir  William,  Law  and  Custom  of  the  Constitution.    2  ed.  1892. 

Clifford,  Frederick,  A  History  of  Private  Bill  Legislation.     2  vols.  1885. 

Cobbett's  Complete  Collection  of  State  Trials.     Printed  by  T.  C.  Hansard,  1809. 

Crawford,  C.  C,  The  Writ  of  Habeas  Corpus.     American  Law  Review  42:488. 

D'Ewes,  Sir  Simonds,  Journal  of  all  the  Parliaments  of  Queen  Elizabeth,  1682. 

Dicey,  A.  V.,  The  Law  of  the  Constitution.  7  ed.  1908. 

Elsj'nge,  Henry,  The  Manner  of  Holding  Parliaments.     1768. 

Gneist,  Rudolph,  History  of  the  English  Constitution.     2  vols.     Trans,  by  P.   A, 

Ashworth.     2  ed.     1889. 
Hale,  Sir  Matthew,  Pleas  of  the  Crown.     2  vols.     1  Am.  ed.     1847. 
Jenks,  Edward,  The  Story  of  the  Habeas  Corpus,  Law  Quarterly  Review  18:64. 
Mcllwain,  C.  H.,  The  High  Court  of  Parliament.    1910. 
Maitland,  F.  W.  (ed.).  Records  of  the  Pariiament  Holden  at  Westminster  1305.    Rolls 

Series  1893. 
May,  Sir  Erskine,  Parliamentary  Practice.      10  ed.     1893. 
The  Proceedings  and  Debates  of  the   House  of  Commons  in  1620  and  1621.   2  vols. 

1766. 
Privileges  and  Practice  of  Parliaments  (pamphlet).     1628. 
Statutes  of  the  Realm.     9  vols.      1810. 
Stephen,  Sir  James  Fitzjames,    A  History  of  the  Criminal  Law  of  England.     3  vols. 

1883. 
Stubbs,  William,  The  Constitutional  History  of  England.     3  vols.     4  ed.      1890. 
Taswell-Langmead,  T.  P.,  English  Constitutional  History.     7  ed.     1911. 


T.TRT?  ARV 


STUDIES  IN  THE  BIOLOGICAL  SCIENCES 

1.  Herbert  G.  Lampson,  A  Study  on  the  Spread  of  Tuberculosis  in  Families. 
1913.     $0.50. 

2.  Julius  V.  Hofman,  The  Importance  of  Seed  Characteristics  in  the  Natural 
Reproduction  of  Coniferous  Forests.     In  press. 

STUDIES  IN  LANGUAGE  AND  LITERATURE. 

1.  Esther  L.  Swenson,  An  Inquiry  into  the  Composition  and  Structure  of 
Ludus  Coventriae;  Hardin  Craig,  Note  on  the  Home  of  Ludus  Coventriae.  1914. 
$0.50. 

2.  Elmer  Edgar  Stoll,  Othello:  An  Historical  and  Comparative  Study.  1915. 
$0.50. 

3.  Colbert  Searles,  Les  Sentiments  de  I'Academie  Frangaise  sur  le  Cid:  Edition 
of  the  Te.xt,  with  an  Introduction.     1916.     $1.00. 

4.  Paul  Edward  Kretzmann,  The  Liturgical  Element  in  the  Earliest  Forms 
of  the  Medieval  Drama.     1916.     $1.00. 

5.  Arthur  Jerrold  Tieje,  The  Theory  of  Characterization  in  Prose  Fiction 
prior  to  1740.     1916.     $0.75. 

CURRENT  PROBLEMS 

1.  William  Anderson,  The  Work  of  Public  Service  Commissions.    1913.    $0.15. 

2.  Benjamin  F.  Pittenger,  Rural  Teachers'  Training  Departments  in  Min- 
nesota High  Schools.     1914.     $0.15. 

3.  Gerhard  A.   Gesell,   Minnesota  PubHc  UtiHty  Rates.     1914.     $0.25. 

4.  L.  D.  H.  Weld,  Social  and  Economic  Survey  of  a  Community  in  the  Red 
River  Valley.     1915.     $0.25. 

5.  GusTAV  p.  Warber,  Social  and  Economic  Survey  of  a  Community  in 
Northeastern  Minnesota.     1915.     $0.25. 

6.  Joseph  B.  Pike,  Bulletin  for  Teachers  of  Latin.     1915.     $0.25. 

7.  August  C.   Krey,   Bulletin  for  Teachers  of  History.     1915.     $0.25. 

8.  Carl  Schlenker,   Bulletin  for  Teachers  of  German.     1916.     $0.25. 

9.  William  Watts  Folwell,  Economic  Addresses.     In  press. 


souTH.nrBa!ruMFAC..v 


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3  1205  01784  8175 


AA    000  777  321     1 


Vni 


